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2020 (7) TMI 24 - HC - GSTBogus billing transactions without any physical movement of the goods - Vires of Rule 142(1)(a) of CGST/GGST Rules - validity of SCN issued by the respondent No.1 under Section 122(1) of CGST Act - HELD THAT - Section 164 of the Act which provides for the power to make rules. It may be noted that Section 164 of the Act confers power on the Central Government to frame the rules. Under Section 164 of the Act, the Central Government has the power to make rules generally to carry out all or any of the purposes of the Act. Rule 142(1)(a) of the Rules, 2017 is valid and is no manner conflict with any of the provisions of the Act. The challenge to the legality and validity of the show cause should fail having regard to the scope of judicial review and the challenge to the validity of Rule 142(1)(a) of the Rules should also fail - Application dismissed.
Issues Involved:
1. Legality and validity of the show cause notice under Section 122(1) of the CGST Act, 2017. 2. Constitutional validity of Rule 142(1)(a) of the CGST Rules, 2017. Detailed Analysis: 1. Legality and Validity of the Show Cause Notice: The writ applicant challenged the show cause notice dated 30th November 2019 issued under Section 122(1) of the CGST Act, 2017, alleging involvement in bogus billing transactions without any physical movement of goods. The applicant sought to quash the notice, arguing that Section 122 does not contemplate the issuance of a show cause notice and that if fraud or suppression is alleged, a notice under Section 74 should be issued for the determination of tax liability. The court noted that the show cause notice is yet to be adjudicated and emphasized the scope of judicial review against such notices. It referenced several precedents, including the Supreme Court's stance that courts should generally refrain from interfering with show cause notices unless they are issued without jurisdiction or are a nullity. The court cited cases like *Standard Chartered Bank vs. Directorate of Enforcement* and *Commissioner of Customs And Central Excise, Madurai vs. Charminar Nonwovens Limited*, which establish that judicial intervention is warranted only when a notice is palpably without authority or jurisdiction. In this case, the court found no merit in the argument that the show cause notice was issued without jurisdiction or was a nullity. It held that the proper course of action for the writ applicant is to respond to the notice and present their case before the adjudicating authority. 2. Constitutional Validity of Rule 142(1)(a) of the CGST Rules, 2017: The writ applicant also challenged the constitutional validity of Rule 142(1)(a) of the CGST Rules, arguing that it travels beyond the provisions of the CGST Act and results from excessive delegation of powers. The court examined the rule in the context of Section 164 of the CGST Act, which empowers the government to make rules for carrying out the provisions of the Act. The court reiterated the principle that a rule under delegated legislation can be declared ultra vires if it exceeds the rule-making power conferred by the Act or conflicts with the Act's provisions. However, it emphasized the presumption of validity that applies to subordinate legislation and the need to interpret such rules in a manner that upholds their validity. The court found that Rule 142(1)(a) is within the scope of the rule-making power conferred by Section 164 of the CGST Act and does not conflict with the Act's provisions. It held that the rule is valid and does not suffer from excessive delegation. Conclusion: The court concluded that the writ application fails on both counts. The challenge to the legality and validity of the show cause notice was rejected, and the court held that Rule 142(1)(a) of the CGST Rules is constitutionally valid. The court clarified that it did not delve into the merits of the allegations in the show cause notice, which should be adjudicated on their own merits by the appropriate authority. The writ applicant is free to raise all legal contentions available during the adjudication process.
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