Can manufacture of unfried fryums
Case Title | J K Foods Industries vs Union of India. |
Court | Gujarat High Court |
Honorable Judges | Justice J.B.Pardiwala |
Citation | 2022 (4) GSTPanacea 298 HC Gujarat C/SCA/7114/2022 |
Judgement Date | 13-April-2022 |
Council for Petitioner | Uchit N Sheth |
Council for Respondent | NA |
Section | Section 103(1) (b) of the Act |
In Favour of | Case to be heared with SCA 16172 of 2021 |
The Gujarat High Court bench of Justice J.B.Pardiwala has held that the constitutional validity of Section 103(1) (b) of the Act is already made a subject matter of challenge in the case of J.K. Papad Industries vs. Union of India, Special Civil Application No.16172 of 2021. In the said writ application, a Co-ordinate Bench of this Court has issued Notice and the matter is to come up on 08.06.2022 for hearing. Case to be heard along with Special Civil Application No.16172 of 2021.
Can manufacture of unfried fryums
FACTS OF THE CASE
It appears from the materials on record that the writ applicant No.1 is a Partnership Firm engaged in the business of manufacture of unfried fryums of different shapes and sizes
It is the case of the writ applicants that bona fide, they believed that the product they are manufacturing is nothing but “Papad” in its literal sense and in such circumstances, they claimed exemption by classifying the products under the HSN 1905
The Office of the Directorate General of Goods and Services Tax Intelligence, Surat Zonal Unit, is of the view that the product manufactured by the writ applicants, cannot be compared and put at par with Papad
In such circumstances referred to above, a show cause notice came to be issued by the Joint Director, Directorate General of GST Intelligence, Surat Zonal Unit, dated 28.02.2022
Integrated Goods and Services Tax (IGST) amounting to Rs.6,17,51,869/-, Central Goods and Services Tax (CGST) amounting to Rs.27,46,174/-, StateGoods and Services Tax (SGST) amounting to Rs.27,46,174/- for the period from July, 2017 to March, 2020, as per Annexure – A of this notice, should not be demanded and recovered from them under Section 74 of the CGST Act, 2017 read with Section 20 of IGST Act, 2017 and read with Section 74 of the Gujarat GST Act, 2017.
Interest at the applicable rate on the GST (IGST CGST+SGST) mentioned at (i) above should not be demanded and recovered from them under Section 50 read with section 74 of the CGST Act, 2017, read with Section 20 of IGST Act, 2017 and Section 50 read with Section 74 of the Gujarat GST Act, 2017
Penalty, equivalent to total GST (IGST+CGST+SGST) amount, should not be imposed on them under Section 74 of the CGST Act, 2017 read with Section 20 of IGST Act, 2017 and read with Section 74 of the Gujarat GST Act, 2017.
Writ application under Article 226 of the Constitution of India
This Hon’ble Court may be pleased to strike down and declare Section 103(1)(b) of the GST Acts as being grossly discriminatory, manifestly arbitrary and violating Articles 14 as well as 19(1)(g) of the Constitution of India
This Hon’ble Court may be pleased to strike down and declare Section 103(1)(b) of the GST Acts as being grossly discriminatory, manifestly arbitrary and violating Articles 14 as well as 19(1)(g) of the Constitution of India
Can manufacture of unfried fryums
COURT HELD
Considering the facts as recorded, held that there is a further challenge to the constitutional validity of Section 103(1)(b) of the GST Act on the ground that the same is manifestly arbitrary and violative of Articles 14 and 19(1)(g) respectively of the Constitution. The constitutional validity of Section 103(1) (b) of the Act is already made a subject matter of challenge in the case of J.K. Papad Industries vs. Union of India, Special Civil Application No.16172 of 2021. In the said writ application, a Co-ordinate Bench of this Court has issued Notice and the matter is to come up on 08.06.2022 for hearing.
To be heard along with Special Civil Application No.16172 of 2021.
Let Notice be also issued to the learned Attorney General of India as there is a challenge to one of the provisions of the GST Act.
Papad & exemption claimed
ANALYSIS OF THE JUDGEMENT
It is the aforesaid show cause notice which is the subject matter of challenge before us. Ordinarily, we would have declined to entertain this writ application at the stage of a show cause notice. However, there is something which Mr. Sheth, the learned counsel, has pointed out to us which has persuaded us to issue Notice and call upon the other side to respond
Challenge to the constitutional validity of Section 103(1)(b) of the GST Act on the ground that the same is manifestly arbitrary and violative of Articles 14 and 19(1)(g) respectively of the Constitution
To be heard along with Special Civil Application No.16172 of 2021.
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