2024 (2) TMI 56

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....been filed by the petitioner seeking the following reliefs:- "A. Issue a writ, order, or direction to quash the impugned S. No. 10 of Notification No. 10/2017 - Integrated Tax (Rate) dated 28.06.2017 - (Annexure-3); and/or B. Issue a writ, order or direction to quash the impugned S.No. 9(ii) of Notification No. 8/2017 Integrated Tax (Rate) dated 28.06.2017 (Annexure-4); and/or C. Issue a writ, order or direction to quash the impugned OIA No. 99(MAA)CGST/JPR/2021 dated 05.05.2021 (Annexure-12); and/or D. Issue a writ, order or direction to quash the impugned Refund Rejection Order dated 13/07/2020 (Annexure-11); and/or E. Issue a writ, order or direction, directing the Respondents to allow with in....

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....er, erroneous assumption on the part of the delegated legislation that service tax is an independent levy as it was prior to the GST and it go vivisect the transaction of supply to levy more taxes on certain components completely overlooking or forgetting the basic concept of composite supply introduced in the GST legislation and the very idea of levying the GST. Prima facie, it appears that while issuing the impugned notification, the delegated legislature had in mind the provision of the Finance Act, 1994, rather than keeping in mind the object of bringing the GST by making the Constitutional (101st) Amendment Act, 2016 to merge all taxes levied on the goods and services to one tax known as the GST. 134. It appears that despite h....

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....n: 171.1. The recommendations of the GST Council are not binding on the Union and States for the following reasons: 171.1.1. The deletion of Article 279-B and the inclusion of Article 279(1) by the Constitution Amendment Act 2016 indicates that the Parliament intended for the recommendations of the GST Council to only have a persuasive value, particularly when interpreted alongwith the objective of the GST regime to foster cooperative federalism and harmony between the constituent units; 171.1.2. Neither does Article 279-A begin with a non-obstante clause nor does Article 246-A state that it is subject to the provisions of Article 279-A. The Parliament and the State legislatures possess simultaneous power to legis....

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.... Act define reverse charge and prescribe the entity that is to be taxed for these purposes. The specification of the recipient - in this case the importer - by Notification 10/2017 is only clarificatory. The Government by notification did not specify a taxable person different from the recipient prescribed in Section 5(3) of the IGST Act for the purposes of reverse charge; 171.4. Section 5(4) of the IGST Act enables the Central Government to specify a class of registered persons as the recipients, thereby conferring the power of creating a deeming fiction on the delegated legislation; 171.5. The impugned levy imposed on the 'service' aspect of the transaction is in violation of the principle of' composite supply' enshrined....