MEMORANDUM OF WRIT PETITION

(Under Article 226 of the Constitution of India)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(Special Original Jurisdiction)
W.P. (MD) No. of 2022

M/s. Baby Marine (Eastern) Exports

Represented by its Managing Partner,
Mr.K.C.Thomos,
1876 – 1880, Fish Meal Plant Road,
Mandapam, Rameshwaram
Ramanathapuram District 623518 …Petitioner
-vs-
1. Union of India
Represented by its Secretary,
Ministry of Finance,
Department of Revenue
North Block, New Delhi - 110 001

2. Central Board of Indirect Taxes and Customs

Department of Revenue,
Ministry of Finance, New Delhi –110001.

3. State of Tamil Nadu,

Represented by Secretary Taxes
Secretariat, Chennai 600 009.

4. The Deputy Commissioner of GST and Central Excise,

Madurai – II Division,
No.5, V.P.Rathinaamy Nadar Road,
Bibikulam,
Madurai – 625 002.

5. M/s N.S Rathinam & Sons P Ltd

2613/242, NH 7, Dindigul Karur Highway,
Agaram village, Dindigul 624709 ....Respondents
WRIT PETITION
The address for services of all notices and processes on the petitioner above
named is that of his Counsel M/s. K.P. ABDUL AZEES, S. KRISHNA KUMAR,
AKHIL SURESH and T.ARCHANA Advocates, having Chamber at No.14, Lawyers
Chamber, High Court Building, Madurai 625 023 and Office at Plot No.123,
A.R.Hospital Road, K.K.Nagar, Madurai 625 020.
 -2-

The address for services of all notices and process on the respondents are the
same as stated above.

For the reasons stated in the accompanying affidavit it is prayed that this

Hon’ble Court may be pleased to issue a WRIT OF DECLARATION or any other

appropriate Writ, Order or Direction in the nature of a Writ declaring the

Section 16 (2) (c) read with Rule 36 (4) of Goods and Service Tax Act and

Rules, 2017, as illegal and unconstitutional to the extent to which it

provides that the recipient is not entitled to take ITC if supplier hasn’t paid

collected tax to the Government and pass such further or other Orders as

this Hon’ble Court may deem fit and proper in the facts and circumstances

of the case and thus render justice.

Dated at Madurai on this the day of August 2022.

COUNSEL FOR THE PETITIONER

 MEMORANDUM OF WRIT PETITION
(Under Article 226 of the Constitution of India)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(Special Original Jurisdiction)
W.P. (MD) No. of 2022

M/s. Baby Marine (Eastern) Exports

Represented by its Managing Partner,
Mr.K.C.Thomos,
1876 – 1880, Fish Meal Plant Road,
Mandapam, Rameshwaram
Ramanathapuram District 623518 …Petitioner
-vs-
1. Union of India
Represented by its Secretary,
Ministry of Finance,
Department of Revenue
North Block, New Delhi - 110 001

2. Central Board of Indirect Taxes and Customs

Department of Revenue,
Ministry of Finance, New Delhi –110001.

3. State of Tamil Nadu,

Represented by Secretary Taxes
Secretariat, Chennai 600 009.

4. The Deputy Commissioner of GST and Central Excise,

Madurai – II Division,
No.5, V.P.Rathinaamy Nadar Road,
Bibikulam,
Madurai – 625 002.

5. M/s N.S Rathinam & Sons P Ltd

2613/242, NH 7, Dindigul Karur Highway,
Agaram village, Dindigul 624709 ....Respondents

WRIT PETITION
The address for services of all notices and processes on the petitioner above
named is that of his Counsel M/s. K.P. ABDUL AZEES, S. KRISHNA KUMAR,
AKHIL SURESH and T.ARCHANA Advocates, having Chamber at No.14,
Lawyers Chamber, High Court Building, Madurai 625 023 and Office at Plot
No.123, A.R.Hospital Road, K.K.Nagar, Madurai 625 020.
 -2-

The address for services of all notices and process on the respondents are the
same as stated above.

For the reasons stated in the accompanying affidavit it is prayed that this

Hon’ble Court may be pleased to issue a WRIT OF CERTIORARIFIED

MANDAMUS or any other appropriate Writ, Order or Direction in the nature

of a Writ calling for the records of the proceedings in No. IV/10/21/2020-

CEX REFUND CASE ID No.NIL/2021-CEX REFUND, Dated 17.02.2021, on

the file of the 4th respondent and quash the same as illegal and

consequently the 4th respondent to allow input credit to the petitioner and

refund the amount of Rs 31,57,846/- adjusted by the Fourth Respondent

from the eligible refund of the Petitioner and pass such further or other

Orders as this Hon’ble Court may deem fit and proper in the facts and

circumstances of the case and thus render justice.

Dated at Madurai on this the day of August 2022.

COUNSEL FOR THE PETITIONER

 MEMORANDUM OF WRIT MISCELLANEOUS PETITION
(Under Article 226 of the Constitution of India)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(SPECIAL ORIGINAL JURISDICTION)
W.M.P.(MD)No. OF 2022
IN
W.P. (MD) No. of 2022
M/s. Baby Marine (Eastern) Exports
Represented by its Managing Partner,
Mr.K.C.Thomos,
1876 – 1880, Fish Meal Plant Road,
Mandapam, Rameshwaram
Ramanathapuram District 623518 …Petitioner/Petitioner
-vs-
1. Union of India
Represented by its Secretary,
Ministry of Finance,
Department of Revenue
North Block, New Delhi - 110 001
2. Central Board of Indirect Taxes and Customs
Department of Revenue,
Ministry of Finance, New Delhi –110001.
3. State of Tamil Nadu,
Represented by Secretary Taxes
Secretariat, Chennai 600 009.
4. The Deputy Commissioner of GST and Central Excise,
Madurai – II Division,
No.5, V.P.Rathinaamy Nadar Road,
Bibikulam,
Madurai – 625 002.
5. M/s N.S Rathinam & Sons P Ltd
2613/242, NH 7, Dindigul Karur Highway,
Agaram village, Dindigul 624709 ....Respondents/Respondents

PETITION FOR DISPENSE WITH

For the reasons stated in the accompanying affidavit it is prayed that this
Hon’ble Court may be pleased to dispense with the production of the
impugned proceedings in No. IV/10/21/2020-CEX REFUND CASE ID
No.NIL/2021-CEX REFUND, Dated 17.02.2021, passed by the 4th
respondent in original and thus render justice.

Dated at Madurai on this the day of August 2022.

COUNSEL FOR THE PETITIONER
DISTRICT: RAMANATHAPURAM

HIGH COURT : MADRAS

MADURAI BENCH

(Special Original Jurisdiction)

W.P (MD) No. OF 2022

WRIT PETITION

M/S. K.P. ABDUL AZEES

(K/2786/1999)
S.KRISHNA KUMAR
MS. NO.739/2020
AKHIL SURESH (k/576/2016)
T.ARCHANA(k/1250/2012)

COUNSEL FOR PETITIONER

Cell No. 94882 86141

Email ID: kumarskk1205@gmail.com
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(Special Original Jurisdiction)
W.P.(MD) No. of 2022
M/s. Baby Marine (Eastern) Exports
Represented by its Managing Partner,
Mr.K.C.Thomos,
1876 – 1880, Fish Meal Plant Road,
Mandapam, Rameshwaram
Ramanathapuram District 623518 …Petitioner
-vs-
1. Union of India
Represented by its Secretary,
Ministry of Finance,
Department of Revenue
North Block, New Delhi - 110 001 and four others ....Respondents
INDEX
S.No. Date Particulars Page
1. .08.2022 Synopsis & Dates and Events
2. .08.2022 Court Fee
3. .08.2022 Coding Sheet
4. .08.2022 Writ Petition
5. .08.2022 Common Affidavit
COMMON TYPED SET OF PAPERS
6. Cold Storage Cooling Charges collected by the
---
5th respondent from the petitioner
7. Proceedings issued by the 4th respondent to the
17.02.2021
petitioner (impugned Order)
8. Representation of the petitioner to the fourth
04.05.2021
respondent.
9. Representation of the petitioner to the fourth
28.06.2021
respondent
10. Relevant page of Section 16(2) (c) and Rule
--- 36(4) of Goods and Service Tax, Act and Rules,
2017
11. .08.2022 Vakalat
12. .08.2022 Bata
It is to certify that the documents filed in the typed set are true copies of the
respective originals.
Dated at Madurai on this the day of August, 2022
COUNSEL FOR PETITIONER
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(Special Original Jurisdiction)
W.P.(MD) No. of 2022
M/s. Baby Marine (Eastern) Exports
Represented by its Managing Partner,
Mr.K.C.Thomos,
1876 – 1880, Fish Meal Plant Road,
Mandapam, Rameshwaram
Ramanathapuram District 623518 …Petitioner
-vs-
1. Union of India
Represented by its Secretary,
Ministry of Finance,
Department of Revenue
North Block, New Delhi - 110 001 and four others ....Respondents
INDEX
S.No. Date Particulars Page
1. .08.2022 Synopsis & Dates and Events
2. .08.2022 Court Fee
3. .08.2022 Coding Sheet
4. .08.2022 Writ Petition
5. .08.2022 Petition for Dispense With
6. .08.2022 Common Affidavit
7. 17.02.2021 Impugned Order
8. .08.2022 Vakalat
9. .08.2022 Bata

Dated at Madurai on this the day of August 2022

COUNSEL FOR PETITIONER
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(Special Original Jurisdiction)
W.P.(MD) No. of 2022
M/s. Baby Marine (Eastern) Exports
Represented by its Managing Partner,
Mr.K.C.Thomos,
1876 – 1880, Fish Meal Plant Road,
Mandapam, Rameshwaram
Ramanathapuram District 623518 …Petitioner
-vs-
1. Union of India
Represented by its Secretary,
Ministry of Finance,
Department of Revenue
North Block, New Delhi - 110 001 and four others ....Respondents

SYNOPSIS

The petitioner seeking a WRIT for issuance of WRIT OF

CERTIORARIFIED MANDAMUS calling for the records of the proceedings in
No. IV/10/21/2020-CEX REFUND CASE ID No.NIL/2021-CEX REFUND,
Dated 17.02.2021, on the file of the 4th respondent and quash the same as
illegal and consequently the 4 th respondent to allow input credit to the
petitioner and refund the amount of Rs 31,57,846/- adjusted by the Fourth
Respondent from the eligible refund of the Petitioner.

The Petitioner had been storing Cargo in cold storage at Dindigul

owned by the fifth respondent on rent basis for the period from August 2018

to May 2019. During this period, the fifth respondent had raised invoices

against the Petitioner to the tune of Rs. 2,07,01,429/- (including GST of Rs

31,57,846/-). The entire amount was paid by the Petitioner to the fifth

respondent including GST component separately collected, but the  fifth

respondent did not remit the same to the tune of Rs 31,57,846/- Hence, this

Writ Petition.
 -2-

DATES AND EVENTS

Sl.No
Dates Events
.
1. Proceedings issued by the 4th respondent to the
17.02.2021
petitioner (impugned Order)
2. Representation of the petitioner to the fourth
04.05.2021
respondent.
3. Representation of the petitioner to the fourth
28.06.2021
respondent

Dated at Madurai on this the day of August 2022

Counsel for the Petitioner

 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(Special Original Jurisdiction)
W.P.(MD) No. of 2022
M/s. Baby Marine (Eastern) Exports
Represented by its Managing Partner,
Mr.K.C.Thomos,
1876 – 1880, Fish Meal Plant Road,
Mandapam, Rameshwaram
Ramanathapuram District 623518 …Petitioner
-vs-
1. Union of India
Represented by its Secretary,
Ministry of Finance,
Department of Revenue
North Block, New Delhi - 110 001 and four others ....Respondents

SYNOPSIS

The petitioner seeking a WRIT for issuance of WRIT OF

DECLARATION declaring the Section 16 (2) (c) read with Rule 36 (4) of
Goods and Service Tax Act and Rules, 2017, as illegal and unconstitutional
to the extent to which it provides that the recipient is not entitled to take
ITC if supplier hasn’t paid collected tax to the Government.

As per section 16 (2) (c) of the GST Act 2017, a recipient can avail
Input Tax Credit only if the supplier remitted the collected tax to the
Government. Invoking the above provisions, the fourth respondent,
disallowed the ITC claim of the Petitioner and was directed to reverse the
same. So also, the supplier did not concede in the return so as to reflect in
Form GSTR 2A as provided under Sub rule (4) to Rule 36 of the Central
Goods and Service Tax Act. For the reasons that the supplier did not file
return and paid tax, the Petitioner has been denied the benefit of ITC. This
is an onerous provision which is illegal and unconstitutional. Hence this
Writ Petition.
 -2-

DATES AND EVENTS

Sl.No. Dates Events

1. Proceedings issued by the 4th respondent to the
17.02.2021
petitioner (impugned Order)
2. Representation of the petitioner to the fourth
04.05.2021
respondent.
3. Representation of the petitioner to the fourth
28.06.2021
respondent
4. Relevant page of Section 16(2) (c) and Rule 36(4) of
---
Goods and Service Tax, Act and Rules, 2017

Dated at Madurai on this the day of August 2022

Counsel for the Petitioner