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TMI Blog2025 (2) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner") in Order-in-Original No.09/Addl. Commr./GST/GHY/2022-2023, whereby the Additional Commissioner confirmed and ordered payment of interest of Rs.1,11,74,767/- for delayed payment of GST for the period from July, 2017 to March, 2021; confirmed demand of ITC amounting to Rs.1,38,39,950/- in respect of ineligible Input Tax Credit (ITC) availed in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017 and confirmed realisation of interest on the confirmed amount of Rs.1,38,39,950/- at the rates applicable in terms of Section 50 of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017 and imposed a penalty of Rs.1,38,39,950/- in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017 for wrong availment of ITC. Vide order dated 31.03.2023, the respondent No.2, Additional Commissioner ordered as follows: (i) Confirmed demand of GST amounting to Rs.39,47,122/- in respect of supply of goods and services for the month of May, 2020 in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017; (ii) Confirmed and ordered payment of intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t") read with Rule 110 of the Central Goods and Services Tax Rules, 2017 (hereinafter to be referred as "the CGST Rules") and a preliminary objection to this effect has also been raised by the respondents. 4. We are of the view that since a statutory remedy is available to the petitioner to challenge the validity of the order dated 12.02.2024 as well as the order dated 31.03.2023, passed by the Commissioner (Appeals), i.e. respondent No.3 and Additional Commissioner, i.e. respondent No.2, respectively, the challenge of the petitioner to the aforesaid orders cannot be entertained in this writ petition and we confine ourselves to examine the question regarding the validity of Rule 36(4) of the CGST Rules. 5. The brief facts of the case are that the petitioner is a registered assessee under the CGST Act and Assam Goods and Service Tax Act, 2017 (in short, "the AGST Act") engaged in the business of rendering works contract service. A show-cause notice dated 23.12.2021 was issued to the petitioner mainly alleging wrong availment of Input Tax Credit (ITC) which is not allowable under the provision of Rule 36(4) of the CGST Rules. 6. The respondent No.2, Additional Commissioner has pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erala High Court is having persuasive value, the challenge to the validity of Rule 36(4) of the said Rules is liable to be dismissed. It is further contended by Mr. Keyal that Section 43A of the CGST Act was inserted by Act No.31/2018, dated 29.08.2018 and the same is effective from the said date. 13. In the affidavit-in-opposition, a categorical statement is made on behalf of the Revenue that Rule 36(4) of the CGST Rules, 2017 was issued by drawing powers from Section 43A of the CGST Act, 2017. 14. Learned counsel for the Revenue has urged the Court that Rule 36(4) of the CGST Rules is otherwise valid and therefore, the validity of the same is liable to be upheld. 15. In rejoinder, learned counsel for the petitioner has argued that the judgment rendered by the Kerala High Court in Nahasshukoor (supra) is not going to effect the challenge of the petitioner to the validity of Rule 36(4) of the CGST Rules because in the above referred judgment, the Division Bench of Kerala High Court has judged the validity of Rule 36(4) of the CGST Rules vis-àvis Article 14 of the Constitution of India and held that it is not violative of Article 14 of the Constitution of India, whereas in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement of this Act shall be construed as a reference to the coming into force of that provision. " 21. From the above, it is clear that the Central Government in its discretion can appoint different dates for different provisions of the CGST (Amendment) Act, 2018 for their enforcement by issuing Notification in Official Gazette. 22. Learned counsel for the Revenue has failed to satisfy this Court that the Central Government, by Notification in the Official Gazette, has appointed a date from which Section 43A has been enforced till the date it was omitted by the Finance Act, 2022, i.e. from 01.10.2022. 23. In such circumstances, it can be concluded that Section 43A has never come into operation because the Central Government has never notified any date for its enforcement till it was omitted. 24. Now question which arises before this Court whether Rule 36(4) of the CGST Rules draws its power only from Section 43A or in particular sub-section (4) of Section 43A. 25. To find out the source of power of Rule 36, in particular, sub-rule (4) thereof, we take a look into the relevant provisions of the CGST Act well as the CGST Rules. 26. The Central Government is empowered to make r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e procedure of furnishing return for availing said benefit. From the above analysis, we have no doubt in our mind that Rule 36 of CGST Rules is relatable to Section 16 of the CGST Act and as such, sub-rule (4) of Rule 36 of the said Rules is also relatable to Section 16 of the CGST Act only. 28. We have taken note of the argument of the counsel for the petitioner that sub-rule (4) of Rule 36 of the CGST Rules became constitutionally valid with the enforcement of Section 16(2)(aa) of the CGST Act, i.e. from 01.01.2022 but cannot be termed as valid for the period prior to that, but for rejection only. Sub-section (1) of Section 164 of the CGST Act enables the Government to make rules for carrying out the provisions of the said Act. Sub-section (2) of Section 164 clarifies that the Central Government may make rules for all or any of the matters which by CGST Act are required to be or may be prescribed without prejudice to the generality of the provisions of sub-section (1) of Section 164. It means that provisions of sub-section (2) of Section 164 are not restrictive of sub-Section (1) and after careful scrutiny of the CGST Act, we have no doubt in our mind that Rule 36 or in partic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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