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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 ..... ST Rules - Whether Section 43A of the CGST Act has been enforced before enactment of the Finance Act, 2022 with effect from 01.10.2022 whereby Section 43A is omitted? - HELD THAT:- It is to be noticed that in sub-section (2) of Section 1 in the CGST (Amendment) Act, 2018, whereby Section 43A is enacted, it is provided that the provisions of the Amendment Act of 2018 shall come into force on such date the Central Government may, by Notification, in the Official Gazette, appoint. The proviso to sub-section (2) of Section 1 says that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as reference to the coming into force of that provision - 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. Section 43A has never come into operation because the Central Government has never notified any date for its enforcement till it was omitted. Whether Rule 36(4) of the CGST Rules draws its power only from Section 43A or in particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TICE N. UNNI KRISHNAN NAIR For the Petitioner : Mr. V. Shraff, Advocate. Ms. B. Podder, Advocate For the Respondent : Mr. S.C. Keyal, Standing Counsel, CGST. Ms. N. Kakati, Advocate JUDGMENT ( Vijay Bishnoi, CJ ) Heard Mr. V.K. Shraff, learned counsel appearing for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel, CGST appearing for the respondents. 2. This writ petition is filed on behalf of the petitioner, M/s High Tech Ecogreen Contractors LLP, for quashing and setting aside of the order dated 31.03.2023 passed by the respondent No.2, i.e. Additional Commissioner, CGST & Central Excise, Guwahati (hereinafter to be referred as the "Additional Commissioner") 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Guwahati [hereinafter to be referred as the "Commissioner (Appeals)"] in Order-in-Appeal No.81/GHY(A)/COM/GSTP/GHY/2024, whereby the appeal preferred by the petitioner against the order dated 31.03.2023 has been dismissed being barred by limitation. Simultaneously, the petitioner has also challenged the constitutional validity of Rule 36(4) of the Central Goods and Services Tax/Assam Goods and Services Tax Rules, 2017. 3. We have noticed that against the order dated 12.02.2024, the petitioner has a remedy of filing an appeal before the Appellate Tribunal under Section 112(1) of the Central Goods and Services Tax Act, 2017 (hereinafter to be referred as "the CGST Act") 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 cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. No other ground is raised to assail the validity of Rule 36(4) of the CGST Rules. 11. Opposing the challenge to the validity of Rule 36(4) of the CGST Rules, Mr. S.C. Keyal, learned counsel for the Revenue, has submitted that the validity of Rule 36(4) of the CGST Rules has already been upheld by the Division Bench of Kerala High Court in Nahasshukoor Vs. Assistant Commissioner, Second Circle, State Goods & Service Tax Department, Colletorate & Ors. [WP(C) No.1853/2023, disposed of on 03.11.2023]. 12. It is contended that since the validity of Rule 36(4) of the CGST Rules has already been upheld by the Division of Kerala High Court and the said judgment passed by the Kerala 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as reference to the coming into force of that provision. Section 1 of the CGST (Amendment) Act, 2018 is reproduced hereunder: " 1. (1) This Act may be called the Central Goods and Services Tax (Amendment) Act, 2018. (2) Save as otherwise provided, the provisions of this Act shall come into force on such date as the Central Government, by notification in the Official Gazette, appoint : Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falls under Chapter IX of the CGST Act under the heading "RETURNS". Rule 36 of the CGST Rules speaks about documentary requirements and conditions for claiming input tax credit. It falls under Chapter V of the said Rules under the heading "INPUT TAX CREDIT". In our view Section 16 of the CGST Act and Rule 36 of CGST Rules are in relation to eligibility of a registered person who can avail input tax credit by furnishing required documents, whereas Section 43A of the CGST Act is defining procedure for furnishing returns for availing input tax credit. Needless to say that the eligibility conditions and requirement of documents for availing input tax credit is distinct from the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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