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TMI Blog2024 (10) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... s wherein the content is provided by NCERT or any similar educational board would amount to supply of goods and the fact that royalty is paid by such publishers would amount to the publishers playing the role of copy right holder as well as printer. The only other ground of challenge from the side of the respondents is that this writ petition is not maintainable as the petitioner is challenging the show cause notice. Counsel appearing on behalf of the respondents submitted that the petitioner should reply to the show cause notice and proceed with the alternative remedy available with the petitioner. It is to be noted that the Supreme Court in a catena of judgements has stated that interference at the show cause notice stage and/or when an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the petitioner, Mr. Gopal Verma and Mr. Dhananjai Awasthi, learned counsel appearing on behalf of Union of India and Mr. Gopi Krishna Sood, learned Standing Counsel appearing on behalf of the State. 2. This is a writ petition under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by the show cause notice dated August 5, 2024 passed by the Additional Commissioner, CGST CE, Kanpur in relation to GST tax payable under Section 74 on printing services . It is to be noted that the petitioner is an entity that obtains tenders issued by the Government, pays royalty to the National Council of Educational Research and Training, and in certain cases, to the Governor. Upon payment of such royalty, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evade tax . 5. As held in several judgments of the Supreme Court and also by this Court in HCL Infotech Ltd. Vs. Commissioner, Commercial Tax reported in (2024) 23 Centax 71 (All.) . We may refer to paras 21 and 22 of the above judgment to understand the principle difference between Section 73 and Section 74 of the UPGST Act, 2017. The same is delineated below:- 21. We take note of the fact that Section 73 of the CGST Act gives power to the adjudicating authority to initiate proceedings for recovery of wrongly availed or utilized Input Tax Credit along with interest and penalty for any reason other than the reason of fraud or any wilful mis-statement or suppression of facts to evade tax. It is to be taken note of that Section 73 comes into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction to initiate proceedings under Section 74 of the CGST Act, the adjudicating authority must expressly mention in the Show Cause Notice that he is prima-facie satisfied that the person has wrongly availed or utilized Input Tax Credit due to some fraud or a wilful mis-statement or suppression of facts to evade tax and that must be specifically spelled out in the Show Cause Notice. Once the aforesaid basic ingredient of the Show Cause Notice under Section 74 of the CGST Act is missing, the proceedings becomes without jurisdiction as the adjudicating authority derives jurisdiction to proceed under Section 74 of the CGST Act only when the basic ingredients to proceed under Section 74 are present. 6. It is to be further noted that advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in a catena of judgements has stated that interference at the show cause notice stage and/or when an alternative remedy is available to the petitioner, specially in cases of fiscal statutes that are self contained in nature is to be avoided by the High Courts. The Supreme Court in the case of Union of India and another v. Gauhati Carban Limited, 2012 (278) ELT 26 (SC) held that the power under Article 226 of the Constitution of India is an extraordinary power and should be exercised by the High Court only in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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