Gujarat Dyestuff Manufactures ... vs Union Of India
2021 Latest Caselaw 4119 Guj

           C/SCA/4782/2021                                            ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 4782 of 2021

======================================
    GUJARAT DYESTUFF MANUFACTURES ASSOCIATION
                      Versus
                  UNION OF INDIA
======================================
Appearance:
UCHIT N SHETH(7336) for the Petitioner(s) No. 1,10,11,12,13,14,15,2,3,4,5,6,7,8,9
for the Respondent(s) No. 1,2,3,4,5,6,7
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 CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM
        NATH
        and
        HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 12/03/2021

                                  ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1. We have heard Mr. Uchit Sheth, the learned counsel appearing for the writ applicants.

2. By this writ application under Article 226 of Constitution of India, the writ applicants have prayed for the following reliefs:

"A. This Hon'ble Court may be pleased to declare that Rule 96(10) of the CGST Rules as amended by Notification No.54/2018­Central Tax dated 9.10.2018 (annexed at Annexure A) is applicably prospectively with effect from the date of the notification and the retrospectivity sought to be given to such notification is wholly without jurisdiction, manifestly arbitrary and violating Article 14 of the Constitution of India.

          C/SCA/4782/2021                                        ORDER




             B.     This Hon'ble Court may be pleased to issue

a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction quashing and setting aside impugned notices (annexed at Annexure B) which are issued by giving retrospective operation to Notification No.54/2018­Central Tax dated 9.10.2018 as being wholly without jurisdiction, arbitrary and illegal;

C. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to stay further proceedings pursuant to impugned notices/summons (annexed at Annexure B) issued to petitioners no.2 to 15;

D. Ex parte ad­interim relief in terms of prayer C may kindly be granted;

E. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioners shall forever pray."

3. We take notice of the fact that a coordinate Bench of this Court, had an occasion to deal with one litigation relating to Rule 96(10) of the CGST Rules in the Special Civil Application No.15833 of 2018. The Special Civil Application No. 15833 of 2018 came to be decided vide judgment and order dated 20.10.2020, wherein, the Coordinate Bench observed in paras 8.10 and 9 respectively as under :

"8.10. It is pertinent to note that the Notification No.54/2018 is made applicable retrospectively from the date when Rule 96 (10) of the CGST Rules came into force and not with effect from 23rd October 2017, as was amended in the previous Notifications.

C/SCA/4782/2021 ORDER

9. In view of above amendment , the grievance of the petitioner raised in this petition is therefore taken care of. However, it is also made clear that Notification No.54/2018 is required to be made applicable w.e.f. 23rd October, 2017 and not prior thereto from the inception of the Rule 96(10) of the CGST Act. Therefore, in effect Notification No. 39/2018 dated 4th September, 2018 shall remain in force as amended by the Notification No.54/2018 by substituting sub rule (10) of Rule 96 of CGST Rules, in consonance with sub section (3) of Section 54 of the CGST Act and Section 16 of the IGST Act. The Notification No. 54/2018 is therefore held to be effective w.e.f. 23rd October 2017. Rule is made absolute to the aforesaid extent, with no order as to costs."

4. Thus, the Coordinate Bench took the view that the notification No. 54 of 2018 should be made applicable with effect from 23.10.2017 and not prior thereto i.e. from the inception of Rule 97(10) of the CGST Act.

5. Mr. Sheth, the learned counsel has drawn our attention to Annexure - A page­22 of the paper book. It is the Notification No. 54 of 2018 dated 09.10.2018. According to Mr. Sheth, the Notification itself makes it clear that the same shall come into force from the date of its publication in the official gazette. According to Mr. Sheth, what has been observed in para­9 of the order passed in the Special Civil Application No. 15833 of 2018 needs to be re­looked, as the Department has started issuing notices indiscriminately on the premise that the Notification would apply with effect from 23.10.2017.

6. We need to understand from the respondents what has been pointed out by Mr. Sheth.

              C/SCA/4782/2021                                          ORDER



7.      Let      Notice be     issued    to    the    respondents   returnable         on

22.03.2020. Till the next date of hearing, the proceedings pursuant to the notice dated 04.02.2021 Annexure - B shall remain stayed.

(VIKRAM NATH, C.J.)

(BHARGAV D. KARIA, J.) AMAR RATHOD...