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The Pith and substance of the CGST Act is on a topic upon which the Parliament has power to legislate, levy and collect GST: High Court of Delhi

Constitutionality of an enactment or any part thereof and the burden to show that there has been a clear transgression of constitutional principles is upon the person who impugns such an enactment. Further, laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. This was held in the case of Sarjat Ali v. Union of India and Anr. [W.P.(CRL) 2020/2020] by Hon’ble Justice Asha Menon in the High Court of Delhi.

A writ petition has been filed challenging the constitutional validity of certain provisions of the Central Goods and Services Tax, Act, 2017. Counsel for petitioner states that the order passed by this Court in Dhruv Krishan Maggu vs. Union of India & Ors. W.P.(C) 5454/2020 is per incuriam as it is contrary to the Division Bench judgment of this Court in Rajbhushan Omprakash Dixit vs. Union of India & Anr., 2018 (1) JCC 506. The relevant observations made by this Court in Dhruv Krishan Maggu vs. Union of India & Ors. are [1] The Goods and Service Tax is a unique tax, inasmuch as the power as well as field of legislation are to be found in a single Article, i.e., Article 246A. The scope of Article 246A is significantly wide as it grants the power to make all laws ‘with respect to’ goods and service tax. [2] This Court is of the prima facie opinion that the pith and substance of the CGST Act is on a topic, upon which the Parliament has power to legislate as the power to arrest and prosecute are ancillary and/or incidental to the power to levy and collect goods and services tax. [3] Even if it is assumed that power to make offense in relation to evasion of goods and service tax is not to be found under Article 246A, then, the same can be traced to Entry 1 of List III. The term ‘criminal law’ used in the aforesaid entry is significantly wide and includes all criminal laws except the exclusions.

The Court pointed out that hat another Division Bench of this Court in Vakamulla Chandrashekhar vs. Enforcement Directorate & Anr., W.P.(Crl.) 852/2017 dated 08th May 2017 had taken a diametrically opposite view to the one enunciated in Rajbushan Omprakash Dixit vs. Union of India & Anr. 2018 (1) JCC 506. Moreover, the Supreme Court in The Directorate of Enforcement vs. Karti P. Chaidambaram, TC (Crl.) No.003 of 2018 has transferred the reference made to a larger Bench of this Court to itself. Consequently, as there are two contrary Division Bench judgments, it cannot be said that the order passed by this Court in Dhruv Krishan Maggu vs. Union of India & Ors. (supra) is per incuriam. Therefore the application for interim relief was dismissed by the High Court of Delhi.

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