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TMI Blog2022 (11) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... itiation of recovery proceedings in pursuance of the Impugned Order by the Opponent No.4 against the Applicant may be stayed; (c) for such further and other reliefs, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. The applicant challenges the constitutionality, vires and legality of Section 28 of the Central Goods and Services Tax (Amendment) Act, 2018 (hereinafter referred to as "the Impugned Amendment") and Circular No.87/06/2019-GST dated 02.01.2019 issued by opponent No.1, since, it seeks to retrospectively disallowed the transaction and carry forward of credit of Education Cess and Secondary and Higher Education Cess into the GST regime, which was levied on inputs, capital goods and inp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said decision, the applicant seeks the above-mentioned reliefs. 4. Learned advocate Mr. Hardik P. Modh has urged that the show-cause notice, which has been issued without any jurisdiction and which has resulted into passing of an Order-in- Original requires indulgence. He, in the alternative, has urged that under Section 107(7) of the CGST Act, let the stay of recovery for the balance amount be granted, if the assessee has paid the amount equal to 10% of the amount of tax under dispute be granted. 5. It has been strongly resisted by learned Standing Counsel Mr. Priyank P. Lodha on the ground that challenge is to the vires and presently there will be no requirement for the Court to grant any stay. 5.1 According to him, the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y one time that the said amount needs to be paid. He, therefore, has also urged to stay that requirement till the Court finalizes the constitutional validity. 7. On our opinion, as the Court is yet to apply its mind to the challenge which has been made before this Court and as the appeal is already statutorily provided, the applicant shall be at liberty to file an appeal and can make a request for stay of appeal. Any further proceedings, at the instance of the appellate authority shall be subject to the final outcome of the main matter. If the issue of limitation is the reason for hampering the chance of the applicant in preferring the appeal, let that not be raised against him. 7.1 In the main proceedings, let the pleadings be completed, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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