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) 1300/2023 & CM No.4928/2023
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 30.06.2022 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 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 period from July, 2017 to 31st March, 2018 falling within the Financial Year 2017-18. 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 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 Rs. 18,31,46,744/- (Rs. 11,69,09,108/- for tax and Rs. 6,62,37,636/- for interest) for the Financial Year 2017-18 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 refund for DNB course fee, service of conducting screening tests and for accreditation services.
5. On 25.05.2022, the acknowledgment of the refund application was issued by respondent no.6 under FORM GST RFD-02. On the same date, that is on 25.05.2022, respondent no. 6 also issued a Show Cause Notice (hereafter SCN), proposing to cancel the petitioners registration for the following reasons:
Refund has claimed on account of assessment/ provisional assessment/ appeal/ any other order but in the instant case the taxpayer has not uploaded any supporting orders. Further the taxpayer has not mentioned any reason in DRC03 for depositing the amount.
6. The petitioner was called upon to furnish a reply to the SCN till 09.06.2022 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 30.06.2022 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 30.06.2022 was decided without considering the submissions of the petitioner and without granting it any opportunity of personal hearing.
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.1299/2023 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
gsr
W.P.(C) No.1300/2023 Page 1 of 2