NATIONAL BOARD OF EXAMINATION IN MEDICAL SCIENCES vs UNION OF INDIA & ORS.
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.04.2024
+ W.P.(C) 1299/2023 & CM No.4926/2023
NATIONAL BOARD OF EXAMINATION
IN MEDICAL SCIENCES ….. Petitioner
versus
UNION OF INDIA & ORS. ….. Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Kashish Kumar Gupta and Mr Chetan Kumar Shukla, Advs.
For the Respondents : Mrs Amrita Prakash, CGSC with Mr Vishal Ashwani Mehta, Adv.
Mr Aditya Singla, SSC for CBIC with Ms Charu Sharma, Advs.
Mr Rajeev Aggarwal, ASC along with Mr Prateek Badhwar, Ms Shaguftha H. Badhwar & Ms Samridhi Vats, Advs.
Ms. Anushree Narain, Standing Counsel with Ms. Simran Kumari, Advs.
CORAM
HONBLE MR JUSTICE VIBHU BAKHRU
HONBLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
VIBHU BAKHRU, J
1. The petitioner has filed the present petition impugning the Refund Rejection Orders dated 29.06.2022 and 28.10.2022 (hereafter the impugned orders) whereby, the petitioners application for refund of Goods and Services Tax (GST) filed under Section 54 of the Central Goods and Services Tax Act, 2017 (hereafter the CGST Act) was rejected.
2. The petitioner claims that directions be issued to the respondents to sanction the refund of GST paid in respect of the Financial Year 2019-20. Additionally, the petitioner also claims interest on the refund amount in accordance with law.
3. The petitioner also impugns the Circular [being Circular No.151/07/2021-GST) dated 17.06.2021 as ultra vires the provisions of entry at Serial No.66(a) read with Paragraph 2(y) of the Notification No.12/2017-Central Tax (Rate) as well as the corresponding notifications issued under the Delhi Goods and Services Tax Act, 2017 (hereafter the DGST Act).
4. The petitioner had filed a refund application dated 30.04.2022 under Section 54 of the CGST Act claiming a refund of ?18,50,61,582/- (?14,99,12,229/- for tax and ?3,51,49,353/- for interest) for Financial Year 2019-20 on account of tax paid for the services provided by the petitioner by way of conducting examinations including entrance examinations. These services included conducting National Eligibility-cum-Entrance Test (NEET) and examination services (excluding thesis fee, caution money, training charges and other miscellaneous charges) provided for Diplomate of National Board (DNB) and Fellow of National Board (FNB) courses. It is stated that the petitioner did not claim the refund for DNB course fee, service of conducting screening tests and for accreditation services.
5. On 20.05.2022, the acknowledgment of the refund application was issued by respondent no.6 under FORM GST RFD-02. On the same date, that is on 20.05.2022, respondent no. 6 also issued a Show Cause Notice (hereafter SCN), proposing to cancel the petitioners registration for the following reasons:
As per the GST Act 2017, the refund on the said ground can be claimed if the same is supported by assessment/provisional assessment/ appeal/ any other order but in the instant case the taxpayer has not uploaded any supporting orders but applied for refund.
6. The petitioner was called upon to furnish a reply to the SCN till 04.06.2022 and was also afforded a personal hearing by respondent no.6, however no date of such personal hearing was mentioned in the SCN. The petitioner replied to the SCN on 02.06.2022 and stated its reasons for depositing payment in FORM GST DRC-03.
7. The refund was rejected by the impugned rejection order dated 29.06.2022 with the following reasons:
Whereas, the taxpayer has claimed the refund referring the above mentioned CBIC circular and not produced any assessment/ provisional assessment/appeal/ any other order in support of claimed refund.
8. It is stated by the petitioner that the impugned refund rejection order dated 29.06.2022 was decided without considering the submissions of the petitioner and without granting any opportunity of personal hearing to the petitioner.
9. The present petition is amongst a batch of petitions that were heard together [being W.P.(C) No.1298/2023, W.P.(C) No.1300/2023 and W.P.(C) No.1303/2023] and W.P.(C) No.1298/2023 was heard as the lead matter. The questions raised in the present petition are covered by the decision rendered today in W.P.(C) No.1298/2023.
10. For the reasons stated in W.P.(C) No.1298/2023, the present petition is also disposed of by setting aside the impugned orders and remanding the matter to the appropriate authority for consideration afresh in view of the observations made by this Court in W.P.(C) No.1298/2023. [Neutral Citation No.2024: DHC:2995-DB]
VIBHU BAKHRU, J
AMIT MAHAJAN, J
APRIL 16, 2024
RK
W.P.(C) No.1299/2023 Page 1 of 2