Is Limitation period under section 54 of CGST Act, 2017 applicable where the levy of GST on a particular activity has been held as unconstitutional?

In this regard, it is important to refer to the verdict of Hon’ble Gujarat High Court in the case of Comsol Energy (P.) Ltd. vs. State of Gujarat [2021] 127 taxmann.com 736 (Gujarat)[21-12-2020] wherein in its own case before the same Court it was held that levy of IGST on Ocean Freight in case of CIF consignments as unconstitutional but respondent-authority issued Deficiency Memo on an erroneous premise that refund claim was not filed within statutory time limit as provided under section 54, wherein it is held that since section 54 is applicable only for claiming refund of any ‘tax’ paid under provisions of CGST Act and/or GGST Act and amount collected by revenue without authority of law is ‘not considered as tax’ collected by them, section 54 is not applicable and thus, deficiency memo was to be quashed and set aside.

The judgement seems to have far reaching impact if the levy is held as unconstitutional even after years. It would not impact the refunds of the same based on section 54 limitation period as it does not seems to ring-fence amount which is ‘not considered as tax’ within its limitation period.