✦ Andhra Pradesh High Court · 05 Feb 2025

M/s Sembcorp Energy India v. Union of India

R RAGHUNANDAN RAO, HARINATH N37 min read

Case at a glance

Decided: 05 Feb 2025
Bench: R RAGHUNANDAN RAO, HARINATH N

Outcome

Disposed of

allowed and all other Writ Petitions are disposed of

Provisions considered

Constitution of India arts. 22, 226
Code of Civil Procedure, 1908 s. 151
Central Goods and Services Tax Act s. 15
Customs Tariff Act, 1975 ss. 3, 3(7)
Customs Act, 1962 ss. 12, 14
Foreign Exchange Management Act, 1999 s. 2
I.G.S.T. Act, 2017 s. 5(1)

Key paragraphs

Para 1717. These Notifications were challenged before the Hon’ble High Court of Gujarat, in the case of Mohit Minerals Pvt Ltd. Vs. Union of India & 1 othet^. The Hon’ble High Court of Gujarat, had held that, once the cost of freight had already been included…
Para 1818. After this judgment, a similar issue came before the Hon’ble High Court of Bombay in the case of M/s.Agarwal Coal Corporation Pvt Ltd. Vs. The . ' 2020 (1) TMI 974, 2020 (33) G.S.TL. 321 (Guj.) ^ 2022 (5) TMI 968 t I RRR,J&…
Para 1919. In another proceeding, the Hon’bleHigh Court of Gujarat in the case of B.L.A. Coke Pvt Ltd. Vs. Union of India & Ors^, had considered the question of levy and collection of I.G.S.T., on the freight charges, paid in F.O.B. contracts and had held that…

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Judgment

The Union of India, Through Principal Secretary to the Government, Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi - 110 001. The Deputy Commissioner of Central Tax, Central G.S.T. Division, Nellore, GST Bhavan, D. No. 24-7-48, Plot No. 121, 12‘^ Road, Magunta Layour, Nellore - 524 003. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents Petition under Article 226 of the Constitution of India praying that in

the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature 'WRIT OF MANDAMUS' a) setting aside the refund rejection order in RFD-06 dated 10.02.2023 issued by the Respondent No. 2 for the period March 2022. r 4 b) directing the Respondents to refund Rs. 1,27,30,517/ full with applicable interest which is presently at the rate of 6percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 12576 OF Between: Sell Energy India Bagri*^^ Limited, ^y^^/^Purarn/Nelatur Village, (formerly M/s. Sembcorp Energy India Nellore Muthukur Mandal, ” ^24 344. Rep. by its Chief Financial Officer, Mr. Ajay AND ...Petitioner

The Union of India, Through Principal Secretary to the Government

3. The Deputy Commissioner of Cenfrai Tax, Central G.S.T. Division Neiiore, GST Bhavan, D. No. 24-7.48, Plot No. 121,12th Road Magunta Layour, Nellore - 524 003. The Commission^ of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS' ...Respondents a) setting aside the refund rejection order in RFD-06 dated 10.02.2023 issued by the Respondent No. 2 for the period February 2022. . r 5 b) directing the Respondents to refund Rs. 88,53,678/- in full with applicable interest which is presently at the rate of Spercent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 12595 OF 2023 Between: M/s Sell Energy India Limited, (formerly M/s. Sembcorp Energy India Limited), Nellore, Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr. Ajay Bagri Pynampuram/Nelatur Village, Muthukur Mandal, AND ...Petitioner

3. The Union of India, Through Principal Secretary to the Government, Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi - 110 001. The Deputy Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-48, Plot No. 121, 12th Road, Magunta Layour, Nellore - 524 003. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS ...Respondents a) setting aside the refund rejection order in RFD-06 dated 10.02.2023 issued by the Respondent No. 2 for the period January 2022. { 6 b) directing the Respondents to refund Rs. 1,25,84,753/- in full with applicable interest which is presently at the rate of 6percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14763 OF 2024 Between: M/s Sell Energy India Limited, (formerly M/s. Sembcorp Energy India Limited) Nellore Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr. Amitkumar Patel Pynampuram/Nelatur Village, Muthukur Mandal, AND ...Petitioner

1. The Union of India, Through Principal Secretary to the Government, Ministry of Finance, Department of Revenue, Udyog Bhavan, North’ Block, New Delhi - 110 001.

The Assistant Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121 12th Road Magunta Layout, Nellore - 524 003.

3. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS ...Respondents a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period July 2022 I 7 b) directing the Respondents to refund Rs. 1,32,53,930/- in full with applicable interest which is presently at the rate of 6percent annum. lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave for filing Rejoinder affidavit in the writ petition No. 14763/2024. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14764 OF 2024 Between: M/s Seil Energy India Limited, (formerly M/s. Sembcorp Energy India Limited), Pynampuram/Nelatur Village, Nellore, Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr. Amitkumar Patel Muthukur Mandal, AND ...Petitioner

1. The Union of India, Through Principal Secretary to the Government, Ministry of Finance, Department of Revenue, Udyoq Bhavan, North Block, New Delhi- 110 001.

2. The Assistant Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121, 12'^ Road Magunta Layout, Nellore - 524 003.

3. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents r 8 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period April 2022. b) directing the Respondents to refund Rs. 1,65,41,091/- in full with applicable interest which is presently at the rate of 6percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14766 OF 2024 Between: M/s Sell Energy India Limited, (formerly M/s. Sembcorp Energy India Limited) Nellore, Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr. Ajay Bagri Pynampuram/Nelatur Village, Muthukur Mandal, AND ...Petitioner

1. The Union of India, Through Principal Secretary to the Government, Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi- 110 001.

3. The Assistant Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121 12th Road, Magunta Layout, Nellore - 524 003. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents ,r 9 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed there\A/ith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period October 2022. b) directing the Respondents to refund Rs.96,93,821/- in applicable interest which is presently at the rate of 6 percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14768 OF 2024 Between: M/s Sell Energy India Limited, (formerly M/s. Sembcorp Energy India Limited), Pynampuram/Nelatur Village, Nellore, Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr. Amitkumar Patel Muthukur Mandal, AND ...Petitioner

3. The Union of India, Through Principal Secretary to the Government, Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi - 110 001. The Assistant Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121 12nd Road, Magunta Layout, Nellore - 524 003. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents r 10 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period June 2022 b) directing the Respondents to refund Rs. 2,88,74,410/- in full with applicable interest which is presently at the rate of 6 percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14770 OF 2024 Between: M/s Seil Energy India Limited, (formerly M/s. Sembcorp Energy India Liniited) Nellore Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr. Ajay Pynampuram/Nelatur Village, Muthukur Mandal AND ...Petitioner

1. The Union of India, Through Principal Secretary to the Government " atssr'aiss' a-^-ss: a »ra Magunta Layout, Nellore - 524 003. “ Central Revenue Building, K.V. Thota, Guntur - 522 004. Tax, Guntur CGST Commissionerate ...Respondents 11 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period May 2022 b) directing the Respondents to refund Rs. 1,43,15,225/- in full with applicable interest which is presently at the rate of 6percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14771 OF 2024 Between: M/s Sell Energy India Limited, (formerly M/s. Sembcorp Energy India Limited), Nellore, Andhra Pradesh - 524 344. Rep. by its General Manager-Finance. Mr. Amitkumar Patel Pynampuram/Nelatur Village, Muthukur Mandal, AND ...Petitioner

3. The Union of India, Through Principal Secretary to the Government Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi- 110 001. The Assistant Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121, 12*'' Road, Magunta Layout, Nellore-524 003. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents r 12 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period February 2023 b) directing the Respondents to refund Rs. 1,24,85,476/- in full with applicable interest which is presently at the rate of 6 percent per annum. Counsel for the Petitioner: 5RI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14773 OF 2024 Between: M/s Seil Energy India Limited, (formerly M/s. Sembcorp Energy India Nellore Village, ’p Financial Officer. Mr. Amitkumar p|te^ " Muthukur Mandal, AND ...Petitioner n- Principal Secretary to the Government

2. pe Assistant Commissioner of Central Tax, Central GST Nellore, GST Bhavan, D. No. 24-7-205, Plot No 121 Magunta Layout, Nellore - 524 003. 12th Road, Division, Central Revenue Building, K.V. Thota, Guntur - 522 004 Central Tax, Guntur CGST Commissionerate ...Respondents i 13 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period March 2023 b) directing the Respondents to refund Rs. 62,12,902/- in full with applicable interest which is presently at the rate of 6percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14776 OF 2024 Between: M/s Sell Energy India Limited, (formerly M/s. Sembcorp Energy India Limited), Nellore, Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr Amitkumar Patel Pynampuram/Nelatur Village, Muthukur Mandal, AND ...Petitioner

1. The Union of India, Through Principal Secretary to the Government Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi - 110 001.

3. The Assistant Commissioner of Central Tax, Central G.S.T. Division, Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121, 12**^ Road, Magunta Layout, Nellore - 524 003. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents 14 Petition under Articie 226 of the Constitution of india praying that in the .rircumstances stated in the affidavit filed therewith, the High Court may be pleased to Issue a Writ, Order or direction particularly one in the nature WRIT 3F MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 b) directing issued by the Respondent No. 2 for the period January2023 refund Rs.41,07,177/- in the Respondents to applicable interest which is presently at the rate of Opercentage per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14777 OF 2024 Between: Mmiffn! Andhra Amltkum^r PafS ' (formerly M/s. Sembcorp Energy India Nellore, Muthukur Mandal, Village, General Manager - Finance Mr. AND ...Petitioner Min- Principal Secretary to the Government

2. The Assistant Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No 121 12‘^Road Magunta Layout, Nellore - 524 003. ’ ’ Central Revenue Building, K.V. Thota, Guntur - 522 004. °fi^®ntral Tax, Guntur CGST Commissionerate ...Respondents 15 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period August 2022 b) directing the Respondents to refund Rs. 2,05,13,286/- in full with applicable interest which is presently at the rate of 6percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14779 OF 2024 Between: M/s Seil Energy India Limited, (formerly M/s. Sembcorp Energy India Limited) Nellore, Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer Mr Amitkumar Patel Pynampuram/Nelatur Village, Muthukur Mandal, AND ...Petitioner

1. The Union of India, Through Principal Secretary to the Government, Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi-110 001.

3. The Assistant Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121, 12^'^ Road, Magunta Layout, Nellore-524 003. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents 16 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period September 2022 b) directing the Respondents to refund Rs.1,68,28,692/- in full with applicable interest which is presently at the rate of 6percentage per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14780 OF 2024 Between: M/s Sell Energy India Limited, (formerly M/s. Sembeorp Energy India Limited) Nellore, Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr. Amitkumar Patel Pynampuram/Nelatur Village, Muthukur Mandal, AND ...Petitioner

3. The Union of India, Through Principal Secretary to the Government Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi-110 001; The Assistant Commissioner of Central Tax, Central G.S.T. Division, Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121, 12*'^ Road, Magunta Layout, Nellore - 524 003. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents 17 Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period December 2022, b) directing the Respondents to refund Rs.50,43,282/- in applicable Interest which is presently at the rate of 6percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA WRIT PETITION NO: 14782 OF 2024 Between: M/s Seil Energy India Limited, (formerly M/s. Sembcorp Energy India Limited) Nellore, Andhra Pradesh - 524 344. Rep. by its Chief Financial Officer, Mr. Amitkumar Patel Pynampuram/Nelatur Village, Muthukur Mandal, AND ...Petitioner

1. The Union of India, Through Principal Secretary to the Government, Ministry of Finance, Department of Revenue, Udyog Bhavan, North Block, New Delhi - 110 001.

2. The Assistant Commissioner of Central Tax, Central G.S.T. Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121 12th Road, Magunta Layout, Nellore - 524 003.

3. The Commissioner of Central Tax, Guntur CGST Commissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. ...Respondents r 18 Petition under Article 22fi of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ. Order or direction particularly one in the nature WRIT OF MANDAMUS a) setting aside the refund rejection order in RFD-06 dated 08.04.2024 issued by the Respondent No. 2 for the period November 2022. b) directing the Respondents to refund Rs. 62,22,448/- in full with applicable interest which is presently at the rate of 6percent per annum. Counsel for the Petitioner: SRI LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondents: SRI PASALA PONNA RAO DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondents: SRI Y.N.VIVEKANANDA, SR. SC FOR SRI RAVULA NAGARJUNA The Court made the following common order: APHC010017442021 IN THE HIGH COURT OF ANDHRA PRADESH AT AWIARAVATI [3488] (Special Original Jurisdiction) WEDNESDAY,THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO THE HONOURABLE SRI JUSTICE HARINATH.N V. WRIT PETITION NOs: 1268 of 2021.28209 of 2022. 12570. 12576 & 12595 of 2023 and 14763. 14764,14766,14768, 14770,14771, 14773,14776, 14777, 14779, 14780 & 14782 of 2024 Between: M/s Sembcorp Energy India Limited ...PETITIONER AND Union Of India and Others ...RESPONDENT(S) Counsel for the Petitioner:

1.LAKSHMI KUMARAN SRIDHARAN Counsel for the Respondent(S):

1. DEPUTY SOLICITOR GENERAL OF INDIA

2.SURESH KUMAR ROUTHU The Court made the followingCommon Order: (perHon’ble Sri Justice R. Raghunandan Rao) This batch of cases has been filed by the same petitioner. These cases raise a common question of law. In the circumstances, all these are being disposed of by way of this common order. RRR,J& HNJ W.P.No.1268 of2021 & batM Heard Sri Raghavari Ramabadran, learned counsel appearing for the

2. petitioner through virtual mode assisted by Ms. Maheswari Arika, learned counsel and Sri Y.N. Vivekananda, learned Senior Standing Counsel appearing for the respondents assisted by Sri Ravula Nagarjuna, learned Junior Standing Counsel.

3. The petitioner is involved in the business of power generation and sources coal and other goods from India and abroad. Whenever the petitioner sources coal from abroad, the transport of the coal and other goods, from outside India is done on C.I.F. basis or on F.O.B. basis. The petitioner import of the said coal or other goods, pays tax under the I.G.S.T. Act on the value of the goods imported into India. Apart from this, the petitioner had also paid tax under I.G.S.T. Act, on a reverse charge mechanism basis, on the cost of freight in F.O.B. contracts. The petitioner, after such payments, had sought refund of the tax paid under the I.G.S.T. Act, on the freight charges in F.O.B. contracts.

The petitioner appears to have made such payments, even in cases where C.I.F. contracts were involved. After making such payments, the petitioner approached the Assistant Commissioner of Central Tax, Central G.S.T. Division, Nellore, for refund of the tax paid under the I.G.S.T. Act , on the freight charges incurred in the transportation of the goods. The Assistant Commissioner, issued notices proposing to reject the refund tax. The petitioner, after receipt of these notices, had filed its replies and had also set f i 3 RRR,J& HN,J W.P.No.1268 of 2021 & batch forth its case by way of a personal hearing. The Assistant Commissioner, after completing the hearing of the matters, had rejected all the refund applications.

The details of the refund applications, orders of rejection and the Writ Petitions challenging these orders of rejection are set out in the table herein below. SI.No WP NO. Relevant Period Refund Application No & Date

1. June 2017 to March 2020 AA3706200202360 dated 29.06.2020 and 32

2. April 2020 to December 2021 January 2022 February 2022 March 2022 April 2022 May 2022 June 2022 July 2022

10.

14777/2024 August 2022

11.

14779/2024

12.

14766/2024 September 2022 October 2022

13.

14782/2024 November 2022

14.

December . 15.

16.

2022 January 2023 February 2023 17 March 2023 TOTAL ottiers AA370322035880E dated 29.06.2020 and 19 others AA371222010297L dated 13.12.2022 AA371222010495L dated 13.12.2022 AA371222010833N dated 13.12.2022 AA370224022129J dated 19.02.2024 /\A370224022124T dated 19.02.2024 AA370224022126P dated 19.02.2024 AA370224022146N dated 19.02.2024 AA3702240221391dated 19.02.2024 AA370224022136O dated 19.02.2024 AA370224022160X dated 19.02.2024 AA370224022157K dated 19.04.2024 /\A370224022142V dated 19.02.2024 AA37 0224022152U dated 19.02.2024 AA370224025067I dated 21.02.2024 AA370224025069E dated 21.02.2024 Refund rejection Order No. &Date RFD-06 dt. 10.08.2020 RFD-06 30.05.2022 RFD-06 10.02.2023 RFD-06 08.04.2024 Refund Amount in Rs. GIF FOB 21294036 513590251 14554877 293932365 Sanctioned in OlO Sanctioned in OlO 12584753 8853678 12730517 16541091 14315225 28874410 13253930 20513286 16828692 9693821 6222448 5043282 4107177 12485476 6212902 35848913 995783304

As far as the orders of rejection relating RRR,J& WAy^ W.P.No.1268 of2021 & batcW' C.I.F. contracts concerned, the said orders would have to be set aside, in view of the judgment of the Hon'ble Supreme Court in the case of Union of India & another 1/s. M/s. Mohit MlneralsPvt. Ltd.\ To that extent, Writ Petition Nos.1268 of 2021 & 28209 of 2022 are allowed, to the extent of the refunds sought on C.I.F. contracts.

The case of the petitioner, before the Assistant Commissioner the cost of freight had been included in the cost of goods, on which tax had been paid by the petitioner under the I.G.S.T. Act. was that The petitioner contended that, a second collection of tax, under the I.G.S.T. Act, on a reverse charge mechanism, by virtue of Notification No.8/2017-lntegrated 28.06.2017 No. 10/2017-lntegrated Notification Tax (Rate), dated Tax (Rate),

28.06.2017, requires to be refunded. The petitioner also contended that, this would amount to double taxation on the same contracts of service and the same was not permissible in view of the judgment of the Hon’ble Supreme Court in the case of Union of India & another Vs. M/s. Mohit MineralsPvt. Ltd.

The Assistant Commissioner, refuted this contention by holding that judgment of the Hon'ble Supreme Court in the case of Union of India & another 1/s. M/s. Mohit MineralsPvt. Ltd. applied only to C.I.F. contracts and ' 2022 (5) TMI 968, (2022) 10 SCC 700 ■, \ 5 RRR,J& HN,J W.P.No.1268 of 2021 & batch the principles laid down by the Hon’ble Supreme Court in that case cannot be extended to F.O.B. contracts.

Aggrieved by the aforesaid orders of rejections, the present set of Writ Petitions have been filed by the petitioner before this Court.

10. Before going into the issues raised in the matters, it would be necessary to consider the scheme of taxation, under the I.G.S.T. Act.

11. Section 5 of the I.G.S.T. Act, provides for levy and collection of tax on import of goods into India, apart from such tax on inter-State supplies of goods or services or both. The relevant portion of Section 5 is extracted herein below; "5. (1) Subject to the provisions of sub-section (2), there shall be levied a tax called the integrated goods and services tax on all inter-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption ^[and un-denatured extra neutral alcohol or rectified spirit used for manufacture of alcoholic liquor, for human consumption], on the value determined under Section 15 of the Central Goods and Services Tax Act and not exceeding forty per cent, as may be notified by the at such rates, Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person. Provided that the integrated tax on goods ^[other than the goods as may be notified by the Government on the recommendations of the Council] imported into India shall be levied and collected in accordance with the provisions of Section 3 of the Customs Tariff Act, 1975 (51 of 1975.) on the value as determined under the said Act at the point when duties of customs are levied on the said goods under Section 12 of the Customs Act, 1962 (52 of 1962.) (2) (3) The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both. (4) (5) I 6 RRR,J& HN,1 W.P.No.1268 of2021 & baton Section 5(1) requires the taxable person, who supplies goods and

12. services, to pay the tax levied under Section 5. Section 5(3) permits the G.S.T. Council to specify categories of goods and services, or both, in which the person responsible for payment of tax was to be the recipient of such goods or services.

13. The proviso to Section 5(1) stipulates that, the value of the goods services, for the purpose of calculating the tax payable by the taxable person. shall be calculated on the basis of Section 12 of the Customs Act, 1962.

14. Section 3 of the Customs Tariff Act, 1975 read with Section 12 of the Customs Act, stipulates that, the valuation of the goods for the purpose of calculation of goods, shall be done in the manner set out in Section 14 of the Customs Act, 1962. Section 14 of the Customs Act, which reads as follows, stipulates that the cost of transportation to the point of importation into India shall be included into the cost of goods for the purpose of calculating the tax payable by the person, who is liable to pay such tax.

15.

Section 14 of Customs Act, 1962 reads as follows: “[14. Valuation of goods. m For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and piace of importation, or as the case may be, for export from india for delivery at the time arid place of exportation, where the buyer and seller of the goods are not related and pnde ts the sole consideration for the sale subject to such other conditions as rtiay be specified in the rules made in this behalf: . , that such transaction value in the case of imported goods shall include, in addition to the price as aforesaid. any amount paid or 7 RRRJ& HN,J W.P.No.1268 of 2021 & batch payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf: Provided further that the rules made in this behalf may provide for,- (0- shall be deemed to be related; the circumstances in which the buyer and the seller the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (Hi). . the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section: 1 [(iv). the additional obligations of the importer in respect of any class of Imported goods and the checks to be exercised, including the circumstances and manner of exercising thereof, as the Board may specify, where, the Board has reason to believe that the value of such goods may not be declared truthfully or accurately, having regard to the trend of declared value of such goods or any other relevant criteria:] Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill of export, as the case may be, is presented under section 50.

(2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. Explanation.-For the purposes of this section- (a) "rate of exchange" means the rate of exchange- (i) determined by the Board, or ascertained in such manner as the Board may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) 'foreign currency" and "Indian currency" have the meanings respectively assigned to them in clause (m) and clause (q) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999).]"

16. As set out above, the liability for payment of such tax would be on the person outside India. As levy and collection of taxes from persons who are abroad would face statutory and practical difficulties, the G.S.T. Council, by \ Notifications issued under Section 5 (3) of the I.G.S.T. Act, namely Notification 8 RRR,J& HNJ W.P.No.1268 of2021 & afotcfr No.8/2017-lntegrated Tax (Rate)

28.06.2017 Notification No.10/2017-lntegrated Tax (Rate), dated 28.06.2017, created a reverse charge mechanism, whereby the person importing the coal and other goods obtaining services, would become liable to pay tax under the I.G.S.T. Act, in relation to the freight charges/cost of transportation of such goods into India.

17.

These Notifications were challenged before the Hon’ble High Court of Gujarat, in the case of Mohit Minerals Pvt Ltd. Vs. Union of India & 1 othet^. The Hon’ble High Court of Gujarat, had held that, once the cost of freight had already been included in the value of goods, on which I.G.S.T. tax, had already paid, further payment of levy of tax on the cost of the freight would amount to double taxation and as such, set aside the said levy of tax. The Union of India, filed an Appeal against this judgment before the Hon’ble Supreme Court. In Union of India & another Vs. M/s. Mohit Minerals Pvt Ltd.^ the Hon’ble Supreme Court, rejected the said Appeal. However, the Hon’ble Supreme Court, had also noticed, the concession made by the petitioner that the issue may be restricted to C.I.F. contracts. The Hon’ble Supreme Court, after considering the various contentions raised before it, had held that, in C.I.F. contracts, collection of tax on freight charges, on a reverse charge mechanism basis was illegal and set aside the same.

18.

After this judgment, a similar issue came before the Hon’ble High Court of Bombay in the case of M/s.Agarwal Coal Corporation Pvt Ltd. Vs. The . ' 2020 (1) TMI 974, 2020 (33) G.S.TL. 321 (Guj.) ^ 2022 (5) TMI 968 t I RRR,J& HN,J W.P.No.1268 of 2021 & batch Assistant Commissioner of State Tax\ The Hon’ble High Court of Bombay, held that, the Notification No.8/2017-lntegrated Tax (Rate), dated 28.06.2017 Notification No. 10/2017-lntegrated Tax (Rate), dated 28.06.2017, had been set aside by the Hon’ble Supreme Court and the same had been affirmed by the Hon’ble Supreme Court, on the basis, the Hon’ble High Court of Bombay, held that the question of levy or collection of tax from the importer, on the cost of freight, in the absence of the aforesaid Notifications was not valid.

19.

In another proceeding, the Hon’bleHigh Court of Gujarat in the case of B.L.A. Coke Pvt Ltd. Vs. Union of India & Ors^, had considered the question of levy and collection of I.G.S.T., on the freight charges, paid in F.O.B. contracts and had held that, the same was not permissible even in the case of F.O.B. contracts.

20.

Before going into the submissions of the learned counsel, it would be necessary to record our inability to agree with the Hon’ble High Court of Bombay that, Notification No.8/2017-lntegrated Tax (Rate), dated 28.06.2017 Notification No.10/2017-lntegrated Tax (Rate), dated 28.06.2017, stand quashed by virtue of the judgments of the Hon’ble High Court of Gujarat and the Hon’ble Supreme Court. A perusal of the judgment of the Hon ble Supreme Court would show that the validity of the Notifications has not been disturbed and the said Notifications would still be applicable. * 2024 (3) T|^l 1265 ^ 2024-VIL-|076-GUJ 10

21.

W.P.No.1268 of2021 & batcW In the light of the aforesaid judgments, it would now be necessary to go RRR,J& into the question of whether tax, on freight charges, in F.O.B. contracts can be collected under the said Notifications.

22.

Notification No.8/2017-lntegrated Tax (Rate), dated 28.06.2017 merely sets out the rate of tax payable on the service provided. Notification No. 10/2017-lntegrated Tax (Rate), dated 28.06.2017 creates a reverse charge mechanism for payment of tax under the I.G.S.T. Act, on the cost of the transportation, by the importer. The creation of such a reverse charge would not automatically require every importer to pay such a tax unless it is Otherwise permissible.

23.

The question that arises before this Court is whether there can be levy and collection of I.G.S.T. on the cost of freight even after such I.G.S.T. tax has already been collected on this service, as a component of the cost of goods, which have been imported.

24.

A conjoint reading of Section 5 (1) of the I.G.S.T. Act, 2017 with Section 3(7) of the Customs Tariff Act, 1975, Section 12 of the Customs Act 1962 and Section 14 of the Customs Act, 1962, makes it amply clear that the cost of freight, involved in the movement of goods from abroad into India are included on the cost of goods, while calculating the I.G.S.T. tax that is payable by the importer. The petitioner in the present case, has already paid I.G.S.T. Tax on the cost of freight as it has been included in the cost of goods on which the tax was cfalculated and collected. i ^ . 11 RRR,J& HNJ W.P.No.1268 of 2021 & batch

25.

This now raises a question of whether the petitioner can be called upon to pay a second round of I.G.S.T. Tax, on the cost of the freight. The respondents have taken the stand that such tax is leviable in view of the reverse charge mechanism set out by Notification No. 10/2017-lntegrated Tax (Rate), dated 28.06.2017.

26.

To the mind of this Court, the said reverse charge mechanism comes into play when the cost of freight can be taxed. In the normal course, such levy of tax is permissible. However, the question is whether the said tax can be levied twice by treating the initial importation of goods as a composite supply and thereafter, treating the payment of freight as a separate contract of services. The Hon’ble Supreme Court, in the case of Union of India & another Vs. M/s.Mohit Minerals Pvt Ltd., had considered a similar situation while deciding the issue in a C.I.F. contract. Paragraph 144 of the said judgment, to our mind, makes it clear that, such taxation is not permissible. Even though the said principle was set out in cases of C.I.F. contracts, it would appear that the principle that there cannot be double taxation of the same transaction by holding it as separate contracts of composite supply and contract of supply of services.

Paragraph-144 is extracted below. “144. It is true that in this case, the first ieg of the transaction between the foreign exporter and the Indian importer is a composite while the second leg, between the foreign exporter and the supply, shipping line may, from a perspective, be regarded as a standalone transaction. Both of them are independent transactions and ordinarily, the IGST could be levied on both sets of transactions- one as supply of goods (under the ambit of composite supply) and the other as supply of services. However, the impugned notifications seek to tax the importer as the deemed recipient of the supply of service. The ASG has advanced an interpretation of Sections 5(3) and 5(4) of the IGST Act, read with Section 2(93) of the CGST Act to contend that the importer can he classified as I 12 RRR,J& HN,^ W.P.No.1268 of2021 & batch ^ foreign the ‘recipient' of the services. On this interpretation, we have upheld the validity of the impugned notifications under Sections 5(3) and 5(4) of the IGST Act in Section D.2-D.5 of this judgment.

The respondents as a matter of fact urged that (i) the Indian importer is not privy to the contract between the foreign exporter and the foreign shipping line; (ii) the Indian importer does not pay consideration to the foreign shipping line; and (Hi) the Indian importer does not received any services from the foreign shipping line since the transportation services are provided by the foreian The ASG, while advancing exporter. shipping arguments on behalf of the Union Government, has opposed these submissions. The Union Government has urged that this Court must look beyond the text of the contract between the foreign shipping line and the foreign exporter to identify the Indian importer as the recipient of the services. This Court has upheld the validity of the impugned notifications on this ground. The Union Government is contradicting the main plank of Its submission now by contending that the two legs of the transaction are separate standalone agreements.

That would imply, that while on the one hand the Union Government seeks to levy tax on the Indian importer by going beyond the text of the contract between the foreign shipping line and foreign exporter (for the purpose of identifying the Indian importer as the recipient of services), on the other hand, as far as the submissions on composite supply are concerned, the Union Government urges that the contracts must be viewed as separate transactions, operating in silos. We are unable to subscribe to this view. The Union of India cannot be heard to urge arguments of convenience - treating the two legs of the transaction as connected when it seeks to identify the Indian importer as a recipient of services while on the other hand, treating the two legs of the transaction as independent when it seeks to tide over the statutory provisions governing composite supply.” In addition to this, the Hon’ble Supreme Court at Paragraph-148 (v) had held as follows: ‘(V).

The impugned levy imposed on the‘service’aspect of the transaction is in violation of the principle of ‘composite supply’ enshrined under Section 2(30) read with Section 8 of the CGST Act Since the Indian importer is liable to pay IGST on the ‘composite supply’, comprising of supply of goods and supply of services of transportation, insurance, etc. in a GIF contract, a separate levy on the Indian importer for the ‘supply of ^rvices’ by the shipping line would be in violation of Section 8 of the CGST Act"

27.

The aforesaid observations of the Hon’ble Supreme Court, are a reiteration of ^he principle that taxation of supply of services, even after the said cost of services had already been taxed, would not arise. We are alive to the fact that the observations of the Hon’ble Supreme Court were made only in the context of a C.I.F. contract. However, the basic principle that there \ \ 13 RRR,J& HN,J W.P.No.1268 of 2021 & batch cannot be double taxation of the same transaction, is a universal principle, which would apply to both C.I.F. contracts and F.O.B. contracts.

28.

In these circumstances, we are of the view that, the impugned orders of rejection of refund are not in accord with the principles laid out above and the same are hereby set aside.

29.

Consequently, matters are remanded to authority reconsideration of the issues, after applying the principle laid down in this judgment.

30.

Needless to say, no fresh application for refund shall be required and the concerned authority shall pass orders on the earlier refund applications, which would now stand pending before the Authority.

Operative part

31.

Accordingly, Writ Petition Nos. 1268 of 2021 & 28209 of 2022 are allowed and all other Writ Petitions are disposed of. There shall be no order as Sd/-K. SRINIVASA RAJU ASSISTANT REGISTRAR to CQSte- (1 //TRUE COPY// SECTION OFFICER To, 5

1. The Principal Secretary to the Government, Ministry of Finan^ce, Department of Revenue, Union of India, Udyog Bhavan, North Block, New Delhi- 110 001. 2 The Assistant Commissioner of Central Tax, Central GST Division Nellore, GST Bhavan, D. No. 24-7-205, Plot No. 121 12th Road, Magunta Layout, Nellore - 524 003.

3. The Commissioner of Central Tax, Guntur CGST Comrnissionerate Central Revenue Building, K.V. Thota, Guntur - 522 004. 4 The Deputy Commissioner of Central Tax, Central Nellore, GST Bhavan, D. No. 24-7-48, Plot No. 121, 12th Road Magunta Layour, Nellore - 524 003. J - -

5. One CC to Sri Lakshmi Kumaran Sridharan, Advocate [OPUC] 6. One CC to Sri Ravula Nagarjuna, Jr. Standing Counsel [OPUC] [OPUC^

8. Two CD Copies RAM Solicitor General of India .-..j- 20 'n ‘ HIGH COURT DATED:05/02/2025 / / f / COMMON ORDER WP.Nos. 1268 of 2021, 28209 of 2022, 12570,12576 & 12595 of 2023 and 14763, 14764, 14766, 14768, 14770, 14771, 14773, 14776, 14777, 14779, 14780 & 14782 of 2024 ALLOWING BOTH THE WP.Nos.1268 of 2021 & 28209 of 2022 WITHOUT COSTS & DISPOSING ALL THE WP.Nos. 12570, 12576 & 12595 of 2023 and 14763, 14764, 14766, 14768, 14770, 14771, 14773, 14776, 14777, 14779, 14780 & 14782 of 2024 WITHOUT COSTS

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The Court recorded the following disposition: allowed and all other Writ Petitions are disposed of

Which statutory provisions did this judgment involve?

Constitution of India — arts. 22, 226; Code of Civil Procedure, 1908 — s. 151; Central Goods and Services Tax Act — s. 15; Customs Tariff Act, 1975 — ss. 3, 3(7); Customs Act, 1962 — ss. 12, 14; Foreign Exchange Management Act, 1999 — s. 2.

Which court decided this case, and when?

Andhra Pradesh High Court, on 05 Feb 2025. The bench was R RAGHUNANDAN RAO, HARINATH N.

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