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2019 (11) TMI 1109 - HC - GSTConstitution of GST Appellate Tribunal - Constitutional validity of Section 109 of the Central Goods and Services Tax Act (CGST) and Section 109 of the Delhi Goods and Services Tax Act (DGST) - Constitutional vires of Section 110 of the CGST and Section 110 of the DGST Act - appointment of members and constitution of Benches - HELD THAT - Very recently i.e. on 13.11.2019, the Supreme Court has rendered its Constitution Bench Judgment in ROJER MATHEW VERSUS SOUTH INDIAN BANK LTD. OTHERS 2019 (11) TMI 716 - SUPREME COURT . In this decision, the Supreme Court considered the Constitutionality of Part XIV of the Finance Act, 2017 and of the rules framed in consonance therewith - So far as the first issue is concerned, the same stands referred to a Larger Bench of Seven Hon ble Judges of SC The issue regarding the constitution of Appellate Tribunal under the CGST Act was not before the Supreme Court, since the Supreme Court was dealing with several issues arising before it in the context of the Finance Act, 2017, whereas the CGST Act was passed by the Parliament on 12.04.2017 w.e.f. 01.07.2017. However, a perusal of the decision of the Supreme Court clearly shows that the said decision would have a serious bearing on the challenge raised by the petitioner in the present case as well. The respondents and particularly respondent Nos. 2,3 and 4 are directed to examine the position as emerging from the decision in Rojer Mathew and to consider formulation of appropriate amendments in the CGST Act so that the provisions of the said Act do not continue to fall foul of the said decision. List on 05.02.2020.
Issues:
Challenge to the vires of Section 109 and 110 of CGST and DGST Acts, Appointment of members to the Goods and Service Tax Appellate Tribunal (GSTAT), Constitutional validity of provisions regarding Tribunal members, Compliance with Supreme Court decisions on Tribunal administration. Analysis: 1. The petitioner challenged the legality of Section 109 of CGST and DGST Acts and sought direction to halt the appointment of GSTAT members until alignment with established principles for ensuring Rule of Law and separation of powers. 2. The Court restrained the appointment of GSTAT members until the next date and later extended the interim order till the disposal of the writ petition. 3. The Madras High Court invalidated certain provisions of the GST Act, suggesting amendments to include Lawyers as Judicial Members in GSTAT for uniformity in statutes. 4. The Government planned to challenge the Madras High Court's decision in the Supreme Court. 5. The Supreme Court's Constitution Bench judgment in Rojer Mathew case addressed rationalizing Tribunal administration, conditions of service, and the issue of pending appeals before the Supreme Court. 6. The Supreme Court identified various issues, including the constitutionality of the Finance Act, excessive delegation, and the need for a Single Nodal Agency for Tribunals. 7. The first issue was referred to a Larger Bench, and other issues were resolved by the Supreme Court. 8. The Supreme Court's decision on Tribunal administration would impact the challenge against CGST Act provisions, mandating compliance by the respondents. 9. The Court directed the respondents to consider amendments in the CGST Act based on the Supreme Court's decision in Rojer Mathew case. 10. The petitioner highlighted flaws in Sections 109 and 110 of CGST and DGST Acts, emphasizing issues related to the composition and qualifications of GSTAT members. 11. The petitioner pointed out discrepancies in the 2019 rules for GSTAT members' appointment, urging alignment with the Supreme Court's decision. 12. The respondents were instructed to consider the highlighted issues while examining the situation. 13. The respondents were directed to submit a status report after due consideration of the highlighted aspects. 14. The next hearing was scheduled for 05.02.2020, continuing from the present proceedings.
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