The present batch of writ petition is filed challenging validity of Notification Nos.9/2023 and 56/2023, on the premise that conditions precedent were non-existent for their issuance and mandatory procedural conditions (Recommendation of GST Council) for exercise of power under Section 168A of Central Goods and Services Tax Act, 2017 (hereinafter referred to as “ CGST Act ”) was not complied. 291/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

2. Overview of GST Act:

Article 246A of Constitution was introduced vide 101st Constitution amendment, whereby Parliament and State Legislatures were conferred with power to make laws with respect to Goods and Service Taxes. Pursuant to the power conferred under Article 246A of the Constitution, Parliament enacted CGST Act and Integrated Goods & Services Tax Act , while the States enacted their respective State Goods and Service Tax Acts, including the State of Tamil Nadu, which introduced Tamil Nadu Goods and Service Tax Act (hereinafter referred to as “ TNGST Act ”). The above enactments were introduced with effect from 01.07.2017. Goods and Services Tax (GST) represents a pivotal shift in indirect taxation, subsuming various indirect taxes levied by the Union and States with a unified system. This transformation under the GST regime was intended to streamline the tax process, alleviate the complexity and multiplicity of previous taxes.

2.2. Goods and Services Tax (GST) consolidated numerous Central and State taxes into a single tax system. The indirect taxes that were absorbed into GST:-

3.Circumstances leading to introduction of Section 168A of CGST Act and impugned notification:

The above ordinance was intended to provide relaxation in relation to administering and enforcing provisions of certain Acts in view of spread of Covid-19 pandemic across the globe including India. It was found imperative to relax certain provisions, including extension of time limit in taxation and other laws. Since Parliament was not in session, the President being satisfied that circumstances warranted immediate action, promulgated the above ordinance in exercise of the power under Clause (1) of Article 123 of the Constitution. Chapter VII to said ordinance provided for amendment to CGST Act, 2017 , whereby Section 168A was inserted.

3.4. Above ordinance became an Act of Parliament titled “THE TAXATION AND OTHER LAWS (RELAXATION OF CERTAIN PROVISIONS) ACT, 2020”. Section 168A to CGST Act, 2017 , was inserted vide Chapter VI to said Act, whereby Government was conferred power under special circumstances to extend time limit specified in, or 295/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch prescribed or notified under the CGST Act in respect of actions which cannot be completed or complied with due to force majeure.

3.5. Impugned Notifications viz., Notification Nos.9/2023 and 56/2023 and G.O.(Ms).No.41 dated 05.04.2023 and G.O.(Ms).No.1 dated 02.01.2024 were issued by Central and State Government, in exercise of their power conferred under Section 168A of CGST Act. It is the validity of above notifications which are the subject matter of challenge in the present batch of writ petitions.

4. Provisions relating to limitation under GST Act:

4.3. Sub-section (2) of Section 73 of CGST Act mandates that a show cause notice shall be issued in this regard, at least three months prior to time limit for passing orders specified under sub-section (10). The said sub-section (2) of Section 73 of CGST Act, is reproduced below:

4.4. It would be clear that the period within which a show cause notice can be issued and an order determining tax liability can be passed by the proper officer are reckoned with reference to due date for filing annual returns. Section 73 of CGST Act, enables authorities to issue notice and pass orders under sub-section (2) and (10) to Section 73 of 297/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch CGST Act , within a period of two years and nine months and three years respectively, from the due date of filing annual return.

4.5. Section 44 of CGST Act, deals with filing of annual returns. Sub-section (1) of Section 44 of CGST Act, stood as below, prior to amendment:

(emphasis supplied) 4.6. Sub-section (1) of Section 44 of CGST Act, stood amended as below, with effect from 01.08.2021:

4.7. Simultaneously, Rule 80 of CGST Rules, 2017, had been 298/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch amended, wherein the due date for filing annual return for a financial year is prescribed as, on or before 31st day of December following the end of such financial year. It may be relevant to note that the due date for filing annual return came to be prescribed through rules, with effect from 01.08.2021. Prior thereto, Section 44(1) of the CGST Act, required every registered person to furnish annual return for every financial year on or before 31st December following the end of such financial year.

4.8. It is relevant to note that due dates for filing annual returns provided under Section 44 of CGST and TNGST Act, were extended from time to time, for a variety of reasons inter alia including the fact that GST levy and compliance being new and frequent technical glitches in GST portal, etc. Extensions so granted are Tabulated below. The extensions set out in the Table below were granted in exercise of powers conferred under Section 44 of CGST Act:

30.09.2020 Notification 41/2020 Central Tax Dt. 05.05.2020 30.10.2020 Notification 69/2020 Central Tax Dt. 30.09.2020 31.12.2020 Notification 80/2020 Central Tax Dt. 28.10.2020 3 2019- 31.12.202 28.02.2021 Notification 95/2020 Central Tax 20 0 Dt. 30.12.2020 31.03.2021 Notification 4/2021 Central Tax Dt. 28.02.2021

5. As the ground of challenge to the notification issued by the Central and State Government are one and the same to avoid duplicity, I propose to deal with the challenge to Central Notifications, for the decision/conclusion in relation thereof would govern the Notifications/Government orders issued by the State Government.

6. Case of Petitioners:

B) Additional submissions relating to Notification No.56 of 2023; C) Impact of Supreme Court order under Article 142 of the Constitution, vis-a-vis on the impugned notification. A. Common Submissions with regard to challenge to Notification Nos.9/2023 and 56/2023:

( Hamdard Dawakhana vs. Union of India reported in AIR 1960 SC 554). Impugned Notifications must be understood and tested as a delegated legislation.

(ii) Section 168A(1) of CGST Act empowers/delegates to Central/State Government, to exercise discretionary legislative powers. Therefore, impugned Notification Nos.9 and 56 of 2023 are a piece of 301/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch delegated legislation issued under said provisions and open to be tested on all grounds available for a challenge of an administrative act1 .

(b) Section 73(10) of CGST and TNGST Acts reflects legislative policy with regard to limitation for determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized. Section 168A of CGST Act, confers power on Government to issue notifications extending time limit specified in, or prescribed or notified under CGST Act , in respect of actions which cannot be completed or complied with due to force majeure. Above power to issue notifications extending time limits conferred under Section 168A of CGST Act, inter alia in respect of time limit prescribed under Section 73 of CGST Act, is an exception to the legislative policy reflected in Section 73 of CGST Act. Being an exception to legislative policy it ought to be strictly construed.

(c) Condition precedent for exercise of power under Section 168A of CGST Act inter alia includes the following viz.,

(i) There must be a force majeure event affecting implementation of any of the provisions of the CGST Act within the meaning of

1. Indian Express Newspapers (Bombay) Pvt. Ltd vs. Union of India , AIR 1986 SC 515 302/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Explanation to Section 168A of the CGST Act.

(ii) Actions for which time limit is specified in or prescribed or notified under the CGST Act “cannot be” completed or complied with.

(iii) Such actions cannot be completed or complied with “due to” force majeure.

The above ingredients are jurisdictional facts or conditions precedent for exercise of power by the Central Government/State Government under Section 168A(1) of the Acts.

(d) Expression "due to", employed under Section 168A of CGST Act, is with reference to and qualifies “force majeure”. Expression "due to", ought to be understood as referring to "causa causans" and not "causa sine qua non". In other words, power under Section 168A of CGST Act, to extend time limit specified in, or prescribed or notified under, the Act in respect of actions which cannot be completed or complied with under Section 168A of CGST Act, is premised on Government arriving at a satisfaction taking into account relevant factors, which would show that there was force majeure that such force majeure was the proximate cause behind the inability of authorities under the Act, to complete actions within the time limit specified, prescribed or 303/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch notified under the Act.

(e) Expression "cannot" employed in Section 168A of CGST Act, conveys "an impossibility" and not mere difficulty or something which prevented actions being completed or complied within prescribed period.

(f) That GST Council while recommending exercise of power under Section 168A of CGST Act, and issuance of notifications thereof failed to take into account relevant materials thereby vitiating the notification which inter alia includes the following:

(iv) Report of CAG for the period 2021-22 bearing No.7 of 2024 dated 21.06.2024.

304/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 6.2. That on a collective consideration of relevant materials placed before this Court, it would be clear that inability on the part of revenue to issue notices, complete adjudication within time limit stipulated under Section 73 of the CGST Act, was not in view of any extraneous factor much less force majeure but attributable wholly to inaction and delay on the part of revenue in setting up suitable system/infrastructure for effectively carrying out scrutiny and audit proceedings. Difficulty, if any, in complying with time limit for action under Section 73 of the CGST Act is self imposed and not attributable to any external factor much less “force majeure”, thereby vitiating exercise of power under Section 168A of CGST Act rendering it invalid.

6.3. It is contended that materials relevant to decide the need for exercise of power under Section 168A of CGST Act, were not placed before GST Council, thus recommendation of GST Council itself is rendered vulnerable to challenge for failing to take into account relevant factors.

B. Additional submissions regarding challenge to Notification No.56 of 305/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 2023 :

That in terms of Section 168A of CGST Act, notification ought to be issued by the Government on the recommendation of GST Council. The GST Council is a constitutional body. Recommendation by GIC cannot be a substitute for one by GST Council for the purpose of Section 168A of CGST Act.

306/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

c) That a ratification by the GST Council of the recommendation made by GIC post issuance of impugned notification would not validate issuance of a notification. This is in view of the reason that what is contemplated is issuance of notification “on” the recommendation of the GST Council. It is trite law that where a statute requires a particular act to be done in a particular manner that act has to be done in that manner and no other. The impugned notification is contrary to the above settled principle.

d)The impugned notification suffers from the vice of abdication of authority by the GST Council and usurping of power vested with GST Council by GIC, which vitiates and renders the impugned notification a nullity.

e) That the impugned notification is contrary to the maxim "delegatus non potest delegre" i.e., a delegate cannot delegate.

f) That the recital in the impugned notification that "the Government, on the recommendation of the Council, hereby, extends the time limit specified under sub section 10 of section 73 for issuance of order ...." is wholly false inasmuch as admittedly the impugned notification has been issued not on the basis of the recommendation of 307/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch the GST Council instead on the basis of recommendation of GIC. The impugned notification thus suffers from malice in law.

C. Submissions relating to the effect of Order of the Hon'ble Supreme Court under Article 142 of Constitution of India extending the limitation and excluding certain period for the purpose of limitation in respect of judicial/quasi judicial proceedings vis-a-vis impugned notifications:

7.1. The submission of the respondents can be divided into three parts viz., A) Common submission relating to validity of Notification No.9 and 56/2023;

B) Submission relating to validity of Notification No.56/2023; C) Impact of order of Apex Court under Article 142 of the Constitution vis a vis impugned notifications; A) Common submission relating to validity of Notification No.9 and

3. Vineet Narain and Others vs. Union of India and another reported in ( 1998) 1 SCC 226, Kalyan Chandra Sarkar vs. Rajesh Ranjan and another reported in (2005) 3 SCC 284 309/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 56/2023:

Notification No.13/2022-Central Tax dated 05.07.2022 shall be deemed to have come into force with effect from the 1 st day of March, 2020 whereby the Government,

i) Extends the time limit specified under sub-section (10) of Section 73 of CGST Act for issuance of order under sub-section(9) of Section 73 of the said Act, for recovery of tax not paid or short paid or of input tax credit wrongly availed or utilized in respect of a tax period for the financial year 2017-18, upto the 30th day of September 2023;

ii) Excludes the period from the 1st day of March, 2020 to the 28th day of Febraury, 2022 for computation of period of limitation under sub section (10) of Section 73 of the said Act for issuance of order under sub section (9) of Section 73 of the CGST Act, for recovery of erroneous refund; and

iii) Excludes the period from the 1st day of March, 2020 to the 28th 310/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch day of February, 2022 for computation of period of limitation for filing refund application under Section 54 or Section 55 of the CGST Act.

b) Notification No.9 of 2023 extended the time limit specified under sub-section (10) of section 73 for issuance of order under sub- section (9) of Section 73 of the CGST Act, for recovery of tax not paid or short paid or of input tax credit wrongly availed or utilised, relating to the period as specified below, namely:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch B) Submission relating to validity of Notification No.56/2023:

Importantly, recommendation for issuance of impugned notification No. 314/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 56 of 2023 was circulated to the Members of the Council and also approved by the Chairperson. Recommendation was tabled in 53rd GST Council Meeting under the head "For information/Ratification", which is in consonance with procedure adopted by Council in 17th GST Council Meeting. Submission of petitioners that there was delegation by GST Council of its function to make recommendation under Section 168A of CGST Act lacks merit.

C) Impact of order of Apex Court under Article 142 of the Constitution on the impugned notification:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch on the decisions of the Hon'ble Apex Court in V.S.Palanivel vs. Sri Lakshmi Hotels (P ). Ltd., reported in 2025 1 SCC 559 and GPR Power Solutions Pvt. Ltd., vs. Supriyo Chaudhuri reported in 2021 17 SCC 312 in support of the above contentions.

8. Questions for consideration:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch D) Whether recommendation by GST Council for issuance of notifications under Section 168A of CGST Act, is mandatory and non compliance would render the legislative exercise by the delegate a nullity.

E) Whether ratification of recommendation by GIC by the GST Council post issuance of Notification No. 56 of 2023, would constitute sufficient compliance with the mandate on recommendation contained in Section 168A of CGST Act or there was any abdication of authority by GST Council or arrogation/usurping of powers vested with the Council by GIC.

F) Whether the suo muto orders of the Hon'ble Supreme Court under Article 142 of the Constitution, would continue to remain binding even after introduction of Section 168A of CGST Act and issuance of notifications by the Government in exercise of its power thereon.

9. I shall proceed to answer above questions in seriatim:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 9.1. To answer the above question it is necessary to bear in mind that a distinction exists between what is called conditional legislation and delegated legislation proper5. In case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e., the ancilliary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is therefore not open to attack on the ground of excessive delegation, delegated legislation proper does confer some legislative power on some outside authority and is therefore open to attach on the ground of excessive delegation.

9.2. It may also be relevant to refer to the judgment of the Hon'ble

5. Delhi Laws Act, 1912 In re, AIR 1951 SC 332, pp.398 to 400 (paras 236 to 242): 1951 SCR 747; Hamdard Dawakhana vs. Union of India , AIR 1960 SC 554, pp.566, 567. 318/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Supreme Court in Hamdard Dawakhana v. Union of India reported in 1959 SCC OnLine SC 38, wherein the distinction between conditional and delegated legislation was explained as under:

9.3. Having set out the distinction between conditional and delegated legislation, I shall now examine Section 168A of CGST Act and the impugned notifications issued thereunder. Section 168A of CGST Act reads as under:

Explanation: For the purposes of this section, the expression "force majeure" means a case of war, epidemic, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or otherwise affecting the implementation of any of the provisions of this Act."

9.4. Legislature as a matter of policy provided for limitation for completion or compliance of actions under the CGST Act . However, legislature introduced Section 168 A of CGST Act, as it was of the view 320/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch that there may be circumstances which would warrant departing from the limitation prescribed by extending the time limit for completing or complying actions under the Act. It must be borne in mind that limitation is founded on public policy and its prescription primarily legislative in character.

9.5. Keeping the distinction between a conditional and delegated legislation and applying the above principle to Section 168A of the CGST Act, it appears that after laying down the policy, legislature has left to the discretion of the delegate i.e., the Government to extend time limit in special circumstances in terms of Section 168A of CGST Act, viz., where actions cannot be complied or completed within the time limit specified or prescribed or notified due to force majeure.

9.6. It would appear that the discretion conferred under Section 168A of CGST Act, to issue a notification to extend time limit in special circumstances is more in the nature of a delegated legislation than conditional legislation, inasmuch as it results in modifying the limitation provided under the Act. The above conclusion stands fortified if one bears in mind as observed supra that limitation is founded on public policy and its prescription is primarily legislative in nature. 321/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch B) Whether Section 168A read with impugned notifications is an exception to the legislative policy under the GST Act with regard to limitation for issuing notices/passing orders under Section 73 of CGST Act and thus ought to be construed strictly.

9.7. To answer the above question, it may be necessary to refer to sub sections (2) and (10) to Section 73 of CGST Act, which reads as under:

section (1) at least three months prior to the time limit specified in sub-section (10) for issuance of order.

(10) The proper officer shall issue the order under sub- section (9) within three years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within three years from the date of erroneous refund." 9.8. It is necessary to bear in mind that limitations stipulated/provided under an Act, is with a view to ensure finality and certainty and part of public policy. Limitation is essential for public 322/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch order to ensure that there is no insecurity and uncertainty. Lack of clarity with regard to limitation would result in creating insecurity and uncertainty. In this regard it may be relevant to refer to judgment in Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project reported in (2008) 17 SCC 448:

712, para 18) “18. The object of law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches.” .....

29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.” 323/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 9.9. The above view stands reiterated on more than one occasion including in the case of Prahlad Raut vs. All India Institute of Medical Sciences reported in (2021) 14 SCC 472 9.10. Limitation prescribed under sub sections (2) and (10) to Section 73 of CGST Act, for issuance of notice and passing of orders reflects the legislative will/policy on the aspect of limitation for determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any wilful misstatement or suppression of facts. Section 168A of CGST Act, confers power on the Government inter alia to extend the time limit stipulated under Section 73 of CGST Act for issuing notices /passing orders under sub-section (2) and (10) of Section 73 of CGST Act. Section 168A of CGST Act read with the impugned notifications is in the nature of an exception to Section 73 of CGST Act, which as observed supra reflects the legislature's will/policy as regards limitation under CGST Act . It is trite law that exception ought to be strictly construed. In this regard, it may be relevant to refer to the judgment of the Hon'ble Supreme Court in Project Officer, IRDP and Others v. P.D. 324/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Chacko reported in (2010) 6 SCC 637 wherein it was held as under:

9.11. It may therefore be necessary to construe Section 168A of CGST Act and impugned notification issued thereunder which purports to extend limitation fixed by Parliament/State legislature strictly.

C. Whether a delegated legislation can be challenged on the ground of failing to take into account relevant factors and if so, whether factors relevant for determining existence of circumstances warranting recommendation for exercise of power under Section 168A of CGST Act, were left out by the Council, thereby vitiating the recommendation and impugned notifications issued thereon such recommendation. 325/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 9.12. One of the primary ground of challenge to impugned notification Nos.9 and 56 of 2023, issued by the Government in exercise of its power under Section 168A of the CGST Act, is that impugned notifications were issued without finding existence of condition precedent and taking into account relevant factors for issuance of notifications under Section 168A of CGST Act.

9.13. To appreciate the above submission, it may be necessary to examine the condition precedent for exercise of power under Section 168A of CGST Act and materials relevant to determine the existence of such condition precedent contended as having been left out while examining the existence or otherwise of such condition precedents before recommendations made by the GST Council and issuance of impugned notifications.

9.14. Before proceeding further it is necessary to note that it is trite that a delegated/subordinate legislation can be challenged on the ground that it has failed to take into account relevant/vital facts in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India reported in (1985) 1 SCC 641 is extracted as under:

application of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc, etc. On the facts and circumstances of a case, a subordinate legislation may be struck down a arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19(1)(a) of the Constitution. It cannot, no doubt, be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant. "

9.16. The above ingredients are jurisdictional facts or condition precedent for exercise of power by the Central Government/State Government under Section 168A(1) of the Acts.

9.17. It is beyond any doubt that occurrence of a force majeure event in terms of explanation to Section 168A of CGST Act, is a sine qua non/condition precedent. Force majeure is defined to mean events mentioned in the Explanation to Section 168A of CGST Act, which includes epidemic. It is not in dispute that Covid-19 would constitute a "force majeure" for the purposes of Section 168A of CGST Act.

9.18. Secondly, Section 168A of CGST Act, would require that actions under the GST Act cannot be completed or complied with due to “force majeure”. It may therefore be necessary to examine the scope of the expression "due to" and "cannot" employed in Section 168A of CGST 328/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Act.

have been held to be synonymous.6 Cannot: Denotes that one is not able (to do some act). But the term is often equivalent to "shall not".7 Cannot: "Cannot" includes a legal inability, as well as a physical impossibility (The Newbattle, 10 P.D.33).

Vesting Order "where a trustee cannot be found" (Trustee Act 1893 (c.53) s.35(1)(ii)(c) – see Trustee Act 1925 (c.19) s.51(1)(ii)(c)); see Re General Accident Insurance [1904] 1 Ch.147, not followed by Buckley J., Re Taylor's Agreement Trusts [1904] 2 Ch. 737; Re Dutton's Patent, 67 S.J. 403; but followed in Re 9 Bomore Road [1906] 1 Ch. 359; a company which has been dissolved "cannot be found" (Re Mills [1905] W.N.36, following Re General Accident Assurance, above) "Cannot safely be done" (Building (Safety, Health and Welfare) Regulations 1948 (SI 1948/1145) reg.5) envisages the question whether an accident is foreseeable in all circumstances likely to occur, having regard to past experience (Connolly v McGee [1961] 1 W.L.R. 811).

6. Black's Law Dictionary-6th Edition

7. Black's Law Dictionary-6th Edition 329/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch "Cannot be obtained" (National Conditions of Sale (20th edn) condition 11(5)). These words mean "cannot ever be obtained", and would not cover a case where the landlord's consent to the assignment of a lease is not yet forthcoming but might be obtained in the future (29 Equities v Bank Leumi (UK) [1987] 11 All E.R.108)8.” 9.18.1. From a reading of the above extracts of the meaning "due to" and “cannot”, it leaves no room for any doubt that “force majeure”, must be the cause for the authorities being unable to complete or comply with action to be taken under the Act, within the time limit specified in or prescribed under the Act. Applying the same to the present batch of case, it is but necessary to show that authorities under GST Act were unable to issue notices or pass orders within the limitation provided under Section 73(2) and Section 73(10) of CGST Act, due to Covid pandemic.

9.19. The expression “due to” would reveal that inability to complete or comply with actions to be taken under the Act within the time limit specified in a prescribed or notified must be closely/proximately connected to “force majeure”. In other words, force

8. Source: Stroud's Judicial Dictionary of words and phrases by Daniel Greenberg, Eighth Edition. 330/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch majeure must be shown to be the most proximate cause for the inability to complete or comply with actions within the time limit prescribed or notified under the Act. A mere casual connection between force majeure and inability to complete or comply with actions within the limitation provided under the Act, may not be adequate for exercise of power under Section 168A of CGST Act.

9.20. It appears to be a case of cause and effect. Cause being force majeure i.e., Covid pandemic, effect being the inability to issue notice/ pass order within the time limit provided under Section 73(2) and (10) of CGST Act .

9.21. The expression “cannot” employed in the Explanation to Section 168A of CGST Act, I would think connote if not impossibility, impracticalities (or) statutory mandate unachievable and not mere inconvenience or an element of disadvantage.

9.22. It may therefore be necessary to examine if covid was the sole or proximate cause for authorities under CGST Act , not being able to complete or comply with actions within the time limit stipulated under Section 73 of the CGST Act.

9.23. With this background, I shall now proceed to examine the 331/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch material relied upon by the petitioner as being relevant, but left out of consideration by the GST Council, while making recommendation to the Government for issuance of impugned notifications under Section 168A of CGST Act.

9.24. It was contended by the learned counsel for the petitioners that materials which would show the impact of Covid-19, or rather lack of it on the inability of the authorities under the GST Act, to issue notice/pass orders within the time limit provided under sub-section (2) and (10) to Section 73 of the CGST Act, was not placed for consideration before GST Council nor in any view considered by the GST Council, inter alia included the following viz.,

a) Office Memorandum of the Ministry of Personnel, Public Grievances and Pension, Government of India, dated 06.02.2022.

“F.No.11013/9/2014-Estt.A-III .....

The undersigned is directed to refer to this Department's OMs of even no. dated 03.01.2022 and 31.01.2022 on the above mentioned subject and to state that, in view of decline in the number of COVID cases and positivity rate, it has been decided that employees at all levels, without any exemption, shall attend office on regular basis with effect from 7th February, 2022. Heads of Department shall also ensure that employees wear masks at all times and continue to follow covid-appropriate behaviors strictly.” 332/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

b) D.O.No.40-3/2020-DM-I(A) of the Home Secretary, Government of India, dated 22.03.2022 addressed to all Chief Secretaries of all States. The relevant portion of the letter is extracted hereunder:

Accordingly, after the expiry of the existing MHA Order No. 40-3/2020-DM-I (A) dated 25th February, 2022, ?? further Order may be issued by MHA. However, Ministry of Health & Family Welfare (MoHFW) advisories on COVID containment measures, including on the use of face masks and hand hygiene, will continue to guide the overall national response to the pandemic.

5. I would, therefore, advise all the States/UTs to consider appropriately discontinuing issue of orders and guidelines under the DM Act, 2005 for COVID containment measures. The States/UTs may continue to follow the SoPs/advisories that have been or are being issued by the MoHFW from time to time for COVID 333/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch containment measures, vaccination and other related aspects, including observing COVID Appropriate Behaviour.”

c) The Systemic problems admitted by Ministry and captured in CAG Report No.5 of 2022, for the period 01.04.2020 to 31.03.2021 dated 31.03.2022. The relevant portion is extracted hereunder:

compliant taxpayers before time-barring of cases as per law. Such a scrutiny should involve risk-based selection of returns for scrutiny, and the results of the scrutiny (similar to scrutiny assessment in respect of income tax) should also be captured in real-time through the CBIC-GST System to ensure transparency and minimize arbitrariness. When Audit pointed this out (December 2021), Ministry, while accepting the audit recommendation, stated (February 2022) 335/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch that scrutiny of returns based on detailed instructions/standard operating procedure is under active consideration and the proposed scrutiny process is envisaged to have risk-based selection of returns and is proposed to include a robust monitoring system to ensure transparency and fairness.” .....

When pointed out (January 2022), Ministry stated (March 2022) that due to the extension of due date of filing of annual returns, less number of taxpayers were available for audit during 2019-20 and 2020-21. Ministry further stated that there was shortage of officers in the Audit Commissionerates, especially in the grade of inspectors whose working strength was less than 50 per cent of the sanctioned strength in most of the Audit Commissionerates. Non-cooperation by the taxpayers in providing documents and Covid-19 pandemic were also cited by the Ministry as the reasons for low coverage of units in internal audit. As regards low recovery in internal audit, Ministry stated that many taxpayers, especially large units, legally contested the internal audit findings through appeal/litigation resulting in low recovery.......... Ministry further stated that due to Covid-19 pandemic, many business units faced liquidity crunch, resulting in lack or shortage of funds for tax compliance during internal audit. In the era of self-assessed tax regime, internal audit is one of the main tools for ensuring compliance by the taxpayers. Further, departmental action against non-compliant taxpayers is a time bound activity under section 73 of CGST Act, 2017. Audit, therefore, recommends that suitable administrative measures should be taken to address the shortage of staff in Audit Commissionerates. Till the time man-power shortage is addressed, the Department may take into account the available staff strength for planning the number of units for internal audit with focus on high risk taxpayers” .....

d. Report of CAG for the period 2021-22 bearing No.7 of 2024 dated 21.06.2024. The relevant portion is extracted hereunder:

Ministry informed (December 2022) that the functionality viz. 'Risk-based Selectivity system' for enabling scrutiny of returns was under development in the CBIC back end application. Audit recommends that the risk-based Scrutiny Module, with periodic review of risk parameters based on inputs received from Directorate General of Analytics and Risk Management (DGARM) reports and audit findings in earlier Audit Reports, may be implemented at the earliest to ensure full transparency and for robust oversight and monitoring of the scrutiny function of the Department.

When pointed out (February 2023), Ministry stated (June 2023) that the Part-I of the Risk based Selectivity System (RSS), which provides for Risk factor Creation, Risk Rule Creation and Risk based selection of Returns for scrutiny is under process and would be deployed to production shortly. The Part-II of the RSS, which provides for a Dashboard and Workflow for the field officers to perform scrutiny of returns by interacting with the taxpayers, i.e. Issuance of notice to the taxpayers in ASMT-10, receipt of taxpayer's reply in ASMT-11 and order of acceptance of reply in ASMT-12, had been deployed.

Therefore, risk-based Scrutiny Module was yet to be implemented fully as the important functionality related to Risk factor Creation, Risk Rule Creation and Risk based selection of Returns for scrutiny was yet to be implemented (June 2023).

3.3.1.2. ..... The total recovery effected was 20 per cent and 21 per cent of the detected short levy in FY 20 and FY 21, respectively. However, during FY22, the total recovery effected 337/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch declined to 17 per cent from 21 per cent in FY 21. Ministry, during 2021-22, had attributed the short coverage of units during internal audit to the shortage of officers in the Audit Commissionerates, especially in the grade of inspectors whose working strength was less than 50 per cent of the sanctioned strength in most of the Audit Commissionerates. Reply of the Ministry was awaited (January 2024). In view of persistent short coverage of internal audit units due to shortage of officers in the Audit Commissionerates, Audit recommends that the Ministry may enhance the availability of human resources in the Audit Commissionerates and ensure optimal utilisation of resources for internal audit.” e. Agenda Item 3 (xiv) – Paragraph 7.53 of the Minutes of the 47th Meeting of the GST Council held on 28th and 29th June, 2022 relevant portion is extracted hereunder:

4.1.The issue was deliberated by the Law committee in its meeting held on 08.02.2023. The Law Committee took the view that it may not be desirable to extend the timelines in such a manner so that it may lead to bunching of last date of issuance of SCN/order under section 73 and section 74 for a number of 339/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch financial years. Accordingly, LC did not agree with the proposal to extend timelines under section 73(10) of CGST Act to the timelines under section 74 of CGST Act for any financial year. Further, LC did not agree with the proposal to extend the timelines for the FY 2017-18, 2018-19 and 2019-20 to 31.12.2024. However, LC felt that considering the delay in scrutiny, audit and assessment process for the FY 2017-18, 2018- 19 and 2019-20 due to restrictions and difficulties faced in COVID-19 period, there may be a need to provide some additional time under section 73(10) of CGST Act for the said financial years in such a manner so that there is no bunching of last dates for issuance of SCN/order under section 73 for these financial years as well as for the subsequent financial years.

4.2. LC, accordingly, recommended that the time limit under section 73(10) of CGST Act for the FY 2017-18, 2018-19 and 2019-20 may be extended as below by issuance of a notification under section 168A of CGST Act:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

b) States/Union Territories were advised to discontinue the issue of Orders and Guidelines under the Disaster Management Act, 2005 , because of the decline in the total case load in the country, standing at 23,913 cases with daily positivity rate of 0.28%.

c) Proceeding of the Home Secretary dated 22.03.2022 clearly proves that impact of COVID-19 had declined to a level that there was no requirement for issue of any orders or guidelines under the Disaster Management Act, 2005 . All of this had taken place by March, 2022.

d) Admission of the Ministry regarding absence of a Risk-based Selectivity System i.e., an operational CBIC back-end application (inherent systemic deficiencies) for effectively carrying out scrutiny of returns under the CGST Act . That there was shortage of Officers in the Audit Commissionerate, especially in the grade of Inspectors, whose working strength was less than 50% of the sanctioned strength in most of the Audit Commissionerates.

e) It also appears that materials considered in the 47th Meeting of GST Council, while making recommendation to the Government to issue notification in exercise of its power under Section 168A of CGST Act, for extending time limit, on the basis of which notification No.13 of 2022 341/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch was issued, and the materials considered in the 49th GST Council Meeting while recommending issuance of notification No.9 of 2023 for extending time limit were the very same materials/reasons. The recommendations based on very same materials/reasons despite a gap of nearly 8 months between the 47th Meeting of the GST Council and the 49th GST Council Meeting, may by itself vitiate the recommendation.

9.26. It thus appears that the reason for notices and orders under sub-section (2) and (10) to Section 73 of CGST Act, not being issued or orders passed, within the time limit provided under Section 73 of the CGST Act is not due to COVID-19 Pandemic, rather the authority were unable to issue notices/pass orders more in view of inherent systemic deficiencies and shortage of officers. Not because of COVID-19. At the highest COVID -19 was only stated as one of the reasons and not the proximate/primary cause. In other words causa causans / proximate cause, for not being able to effectively carry on with scrutiny/audit (which forms the basis for action under Section 73 of CGST Act primarily) was thus even according to the Ministry not due to force majeure as contemplated by the Explanation to Section 168A of CGST Act. It thus appears the reasons for the authorities under the CGST Act 342/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch not being able to complete or comply with issuance of notice or pass orders under Section 73(2) or 73(10) of CGST Act , appears to be more in view of systemic deficiencies and failure to recruit/appoint adequate officers which are causes that are self inflicted/created. Given the above, GST Council could not have recommended the issue of a further Notification/G.O. extending time under Section 73 of the Acts.

9.27. Ministry of Personnel, Public Grievances and Pension, Government of India and the communication by the Home Secretary, Government of India would show normalcy had returned even has early as February, 2022. It is trite that different ministries/department of the Government must speak in one voice9, there cannot be conflicting stands more importantly on factual aspects by two different ministries. Moreover, in this case if one keeps in view admission by the concerned Ministry before CAG that the difficulty in carrying out scrutiny and audit which as stated supra primarily forms the basis for issuance of notices/passing of orders under Section 73 of the CGST Act was in view of systemic deficiencies and lack of adequate resources/personnel, the inability to take action within the time limit specified under Section 73 of CGST Act, cannot be attributed to covid-19 the inability rather was self

9. (2016) 1 SCC 560 343/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch inflicted by the department. It thus seems that the Government was not justified in invoking power under Section 168A of CGST Act.

9.28. Importantly, the genuineness/correctness of the above material remains uncontroverted by the Revenue. Instead Revenue in response would submit that Explanation to Section 168A of CGST Act, which defines “force majeure” is very wide and would submit the expression “otherwise”, employed in the said Explanation would cover any event including systematic inefficiency/deficiency, lack of adequate personnel which affects implementation of the provisions of the Act.

9.29. To appreciate the above contention, it may be useful to refer to the Explanation to Section 168A of the CGST Act which reads as under:

9.31. I would also think that the expression “otherwise”, employed in Explanation to Section 168A of CGST Act may have to be understood keeping in view the rule of ejusdem generis i.e., when particular words pertaining to a class, category or genus are followed by general words, the general words must be construed as limited to things of the same kind as those specified10. This is in view of the fact that the expression “otherwise” is preceded by various events of force majeure followed by the expression “nature”, which qualifies the cause of force majeure covered under the said Explanation. Judgements relied upon by respondent for supporting the position that “otherwise” will have independent operation were based on the particular context in which they were found. Therefore, no reliance can be placed upon the same. Importantly reading the words “or otherwise” in Explanation to Section

10. Kavalappara Kottarathil Kochuni vs. State of Madras , AIR 1960 SC 1080, pg.1103 346/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 168 A of CGST Act , independent of what has preceded it by respondents will result in a non-force majeure event / condition becoming sufficient for exercise of power under Section 168A(1) of the Act. The above construction sought to be placed by respondents defeats the object as well as plain language of the said provision.

9.32.Yet another reason which would suggest that the expression "otherwise", cannot be a complete departure from the preceding expressions or wide enough to include any event/calamity which would affect implementation of any of the provision of the Act, is that it would render the enumeration of various events such as war, flood etc., redundant. It is trite that any construction that imputes redundancy/ superfluity to legislation must be avoided. I would thus think that the construction placed by the Revenue on the expression "otherwise" employed in Section 168A of CGST Act, does not appear to reflect the legislative intent and thus unacceptable.

9.33. It appears to me from the above discussion that the above materials referred to in Paragraph 9.24 (supra) is relevant and ought to have been considered by the GST Council, while making recommendation to the Government to issue notification extending time 347/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch limit under Section 168A of CGST Act. Failure to take into the above relevant materials vitiates the recommendation. As a consequence the impugned notifications in the absence of a valid recommendation may also not comply with the mandate under Section 168A of CGST Act viz., notification must be issued on the recommendation of the GST Council. 9.34. Precedents on the issue:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch "17. Thus, if there is force majeure as defined in Section 168A, the Government is empowered to extend the limitation period for taking actions which could not be completed or complied with due to force majeure. No one can deny that COVID-19 was a force majeure as it was a pandemic that caused large-scale human tragedy and suffering all over the world and paralyzed the world, including economic activities.

18. The notifications in Exts. P7 and P8 were issued by the Central Government on the recommendation of the GST Council based on a suo motu order passed by the Supreme Court in consideration of the COVID-19 pandemic. The GST Council, in its 47th meeting held on 28th and 29th June 2022 took note of the effect of the Covid-19 pandemic and agreed with the recommendation of the Law Committee. It was observed that the Central and the State Governments were working with reduced staff, along with staggered timings and exemption to certain categories of employees from attending offices, from time to time during the COVID period. A conscious policy decision was taken not to do enforcement actions in the initial period of implementation of the GST law. Therefore, no action for scrutiny, audit, etc., could be undertaken during the initial period of GST implementation. As thedue date for filing the annual return for Financial Year 2017-18 was 07.02.2020 based on which limitations for demand under the Act are linked As Covid happened immediately after that, thereby the audit and scrutiny for the Financial Year 2017-18 were impeded due to the various restrictions during the Covid period Therefore, the decision was taken to extend the limitation under Section 73 for the Financial Year 2017-18 for issuance of the order in respect of demand linked with due date of annual return till 30.09.2023 under the powers available under Section 168A of the GST Act.

19. How much time could have been extended considering the pandemic is the discretion of the Executive, 349/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch which has been taken based on the recommendation of the GST Council. I do not find that the notifications impugned in the writ petition in Exts. P7 and P8 are ultra vires the provisions of Section 168A of the CGST/SGST Act. The Government is well within the power to extend the limitation for completing the proceedings and taking action under Section 73 of the Act by issuing notification under Section 168A of the GST Act if there is force majeure. COVID-19 was a force majeure, and taking into account the various factors, the time limit has been extended. Therefore, I find no substance in the challenge to the said notifications, and the writ petition is dismissed to that extent."

b) Graziano Transmissioni vs. Goods and Service Tax – Allahabad High Court reported in 2024 SCC OnLine All 3012:

c) Barhonia Enigcon Pvt. Ltd. vs. State of Bihar reported in 2024 SCC OnLine Pat 8366:

d) Brunda Infra Pvt. Ltd., vs. Additional Commissioner, Central Tax reported in 2025 SCC OnLine TS 145:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 9.39. On a reading of the above judgments this Court finds that the materials now placed before this Court which inter alia includes the following was not placed before the above Courts.

(i) Office Memorandum of the Ministry of Personnel, Public Grievances and Pension, Government of India dated 06.02.2022.

(ii) D.O.No.40-3/2020-DM-1(A) of the Home Secretary, Government of India, dated 22.03.2022 addressed to all Chief Secretaries of all States.

(iii) CAG Report No.5 of 2022 for the period 01.04.2020 to 31.03.2021 dated 31.03.2022.

(iv) Report of CAG for the period 2021-22 bearing No.7 of 2024 dated 21.06.2024.

9.40. This Court has already found supra that the above materials are relevant and ought to have been taken note of by the GST Council, while making the recommendation under Section 168A of CGST Act, but left out by the GST Council while making the recommendation thereby vitiating the same. In that view of the matter this Court is of the view 353/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch that the impugned notifications suffers from the vice of not complying with the statutory mandate inasmuch as the recommendation itself is made without keeping in view relevant material. It is also found supra that a delegated legislation is open to challenge on the ground of failing to take into account relevant material. The impugned notification does not even contain a recital that actions under Section 73 of CGST Act viz., issuance of notice and passing of orders within the time limit provided under sub section (2) and (10) of Section 73 of CGST Act was only due to Covid (force majeure). In the circumstances this Court is of the view that the impugned notifications cannot be sustained.

D) Whether recommendation by GST Council for issuance of notifications under Section 168A of CGST Act, is mandatory and non compliance would render the legislative exercise by the delegate a nullity.

9.41. The requirement of recommendation by GST Council under Section 168A of CGST Act, is a mandate by Parliament. It is trite that when law requires a particular act to be done in a particular manner the act ought to be done in that manner and no other 11. The Revenue would

11. Competent Authority v. Barangore Jute Factory , (2005) 13 SCC 477 354/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch submit that recommendation by GST Council is not mandatory and would place reliance on decision of the Hon'ble Supreme Court in the case of Union of India & Anr. v. M/s.Mohit Minerals Pvt. Ltd., reported in (2022) 10 SCC 700. It appears to me that the above submission is on the basis of a mis-reading of the judgment of the Hon'ble Supreme Court in Mohit Minerals by the Revenue, wherein a distinction is made as to the binding nature of recommendation of GST Council in relation to secondary legislation vis-a-vis primary legislation. While it was held that recommendation of GST Council may not be binding when a competent legislative body is exercising its legislative power however, it was made clear that the recommendation of GST Council would be binding on the Government when it exercises its power to notify secondary legislation. The relevant portion of Mohit Minerals is extracted hereunder:

9.42. I would think reliance by the Revenue on the above decision to suggest that the recommendation by GST Council is not mandatory is wholly misplaced. It is important to note that Mohit Minerals was dealing with a recommendation under Article 279A of Constitution of India, on the other hand, we are dealing with a recommendation mandated under CGST Act as a pre-requisite/condition precedent for exercise of power under Section 168A of CGST Act. The recommendation of GST Council under Article 279A of the Constitution 356/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch cannot obviously be mandatory when it comes to legislative action in view of the fact that the power to legislate on Goods and Service Tax flows from Article 246A of Constitution of India, any attempt to suggest that the above legislative power would be subject to recommendation of an executive body albeit constitutional body i.e., GST Council may well strike an imbalance rather offend the doctrine of separation of powers between the three organs viz., legislature, judiciary and executive. It is important to remind ourselves that separation of powers is part of basic structure of Constitution and thus ought to be preserved, any construction which offends/infracts, the above rule ought to be eschewed.

9.43. Now on the question as to whether the recommendation of GST Council is mandatory for the purpose of exercise of power under Section 168A of the CGST Act and whether such recommendation is binding or not. It appears that while the recommendation is mandatory it may still not be binding on the Central Government. For it is still open to the Central Government to either act or not to act on the recommendation. In this regard it may be relevant to refer to the judgment of the Gauhati High Court in WP(C)/3585/2024, the relevant 357/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch portion of which is extracted hereunder:

(emphasis supplied) 9.44. In the light of the above discussion, I am of the view that recommendation of GST Council for issuance of notification under Section 168A of CGST Act is mandatory but not binding on the 358/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch government for the purposes of issuance of notifications under Section 168A of CGST Act.

E) Whether ratification of recommendation by GIC by the GST Council post issuance of Notification No. 56 of 2023, would constitute sufficient compliance with the mandate on recommendation contained in Section 168A of CGST Act or there was any abdication of authority by GST Council or arrogation/usurping of powers vested with the Council by GIC.

9.45. Admittedly, there was no recommendation by GST Council prior to issuance of impugned notification No.56 of 2023. Admittedly, Government issued the notification No.56/2023 in exercise of its power under Section 168A of CGST Act, even prior to any recommendation by the GST Council. There is no quarrel that GIC is not GST Council, instead it is a Committee constituted by the GST Council. GST Council is a Constitutional body. Article 279A of Constitution of India provides for its constitution under sub-clause (2) which reads as under:

9.46. The Constitution of GIC is as under:

The learned Additional Solicitor General would place reliance upon the

12. Competent Authority v. Barangore Jute Factory , (2005) 13 SCC 477 361/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch judgment of the Hon'ble Supreme Court in the case of Vivek Narayan Sharma (Demonetisation Case-5 J.) v. Union of India, reported in (2023) 3 SCC 1, wherein in the context of Notification issued under Section 26(2) of the RBI Act, 1934 for effecting demonetisation which required the Central Government to take a decision on demonetisation on the recommendation of the Central Board, it was found that a discussion/proposal was in fact initiated by the Central Government and it was advised / suggested to the Central Board by the Central Government to consider recommending demonetisation. The Central Board pursuant to the above advise/suggestion of the Central Government in turn recommended demonetization of certain currency notes in exercise of its power under Section 26 of the RBI Act. Pursuant to the above recommendation, the Central Government demonetized certain currency. It was submitted before the Apex Court that inasmuch as the Central Board itself made the recommendation only on the proposal initiated by the Central Government, thus mandate under sub section (2) to Section 26 of RBI Act was not complied with. Contention was rejected. Relevant portion of the judgment is extracted hereunder:

9.50. The above judgment may not have any applicability to the facts of the present case inasmuch as in terms of Section 168A of the CSGT Act in order to extend time limit in special circumstance, notification may be issued by the Central Government on the recommendation by the GST Council. The impugned Notification came to be issued without recommendation of the GST Council, thus the 363/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch mandate contained in Section 168A of CGST Act was not complied with. Recommendation by the GST Council was only by way of ratification of a decision of GIC and subsequent to the issuance of notification No.56 of 2023, this may not constitute compliance with the mandate of Section 168A of CGST Act. While in the demonetisation case relied by the Revenue, the Central Board which is the appropriate body to recommend in fact made a recommendation prior to the exercise of power by the Central Government under sub section (2) of Section 26 of RBI Act, 1934, though the Central Government may have possibly initiated the entire proposal. In the circumstance reliance on the judgment of the Supreme Court in the demonetization case appears to be wholly misplaced.

9.51. It may also be relevant to note the judgment of the Hon'ble Supreme Court in the case of Marathwada University vs. Seshrao Balwant Rao Chavan reported in (1989) 3 SCC 132, wherein while dealing with the effect of ratification with regard to exercise of statutory power it was held that the principle of ratification is alien to exercise of power under statutory provision. The relevant portion is extracted hereunder:

9.53. In view of the above discussion, this Court is of the view that the recommendation by GIC Council ratified by GST Council after issuance of impugned Notification No.56/2023, would not constitute compliance with the mandate contained on recommendation in Section 168A of CGST Act.

9.54. Importantly, at the time of issuance of notification 365/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch No.56/2023 there was only recommendation/resolution of GIC which was later ratified by GST Council after issuance of notification No.56/2023, this is yet another reason as to why the impugned notification would be rendered bad inasmuch as it may well constitute abdication of authority by GST Council or arrogation/usurpation of power by GIC which is conferred on the GST Council under the CGST Act , which would vitiate the recommendation. In this regard it may be relevant to refer to the judgment of Hon'ble Supreme Court in the case of State of U.P. v. Maharaja Dharmander Prasad Singh reported in (1989) 2 SCC 505:

9.55. The thrust of petitioners submission with regard to order of the Hon'ble Supreme Court under Article 142 of Constitution of India was that the power therein cannot be used to supplant substantive law. In other words, power under Article 142 of Constitution of India is not meant to nullify statutory provisions. Orders under Article 142 of Constitution of India are made to fill the vacuum until the legislature enacts substantive law.13 The orders under Article 142 of Constitution of

13. Supreme Court Bar Association. v. Union of India, (1998) 4 SCC 409; (2024) 4 SCC 761; Vineet Narain v. Union of India , (1998) 1 SCC 226; Kalyan Chandra Sarkar v. Rajesh Ranjan , (2005) 3 SCC 284 367/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch India has a limited shelf life i.e., until legislature or executive steps in and occupies/covers the field. It is submitted that extension of limitation, if any, by virtue of orders under Article 142 of Constitution of India by the Apex Court would cease to have effect with the introduction of Section 168A of CGST Act and in any view with the issuance of Notification No.13 of 2022.

9.56. To the contrary it is submitted by learned counsel for the respondents by placing reliance on judgment of Telangana High Court that in view of order under Article 142 of Constitution of India by the Hon'ble Apex Court, the authorities under the Act would have the benefit of the exclusion granted by the Apex Court vide order dated 10.01.2022 while computing limitation under sub section (2) and (10) of Section 73 of CGST Act.

9.57. It appears to me that the submission by the petitioner that the orders of the Hon'ble Apex Court under Article 142 of the Constitution, in particular, the last order dated 10.01.2022, whereby the period between 15.03.2020 and 28.02.2022, stood excluded for the purposes of calculating limitation in respect of any judicial/quasi judicial proceedings would cease to have effect with the introduction of Section 168A to the 368/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch CGST Act /SGST Act and in any view with the issuance of notification No.13 of 2022, do not appear to have merit for the following reasons.

9.58. Before I deal with the reasons, it may be relevant rather necessary to have a look at the orders of the Hon'ble Supreme Court and the notifications issued under Section 168A of CGST Act.

9.59. I shall set out briefly orders under Article 142 of Constitution of India, passed by the Hon'ble Supreme Court periodically and the Notifications issued in exercise of power under Section 168A of CGST Act.

9.60. Due to outbreak/onset of Covid-19 pandemic in the country, lawyers and litigants faced difficulties in filing application/ petition within the limitation stipulated under General and Special Laws. Apex Court took suo moto cognizance of the difficulties faced and passed a series of orders commencing with the order dated 23.03.2020 and culminating/ending with the order dated 10.01.2022 excluding limitation. The following Table contains gist of the orders passed by the Hon'ble Supreme Court under Article 142 of the Constitution from time to time. S.No. Date Orders of Extension by the Hon'ble Supreme Court U/Article 142 r/w.141 of the Constitution of India 1 March 23, 2020 Limitation Period in filing petitions/ Applications / suits/ Appeals / all other proceedings extended from 369/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch S.No. Date Orders of Extension by the Hon'ble Supreme Court U/Article 142 r/w.141 of the Constitution of India 15.03.2020 till further orders.

2 May 6, 2020 All periods of limitation prescribed under Section 138 of NI Act, 1881 & Arbitration and conciliation Act, 1996 extended w.e.f 15.03.2020 until further orders. 3 July 10, 2020 i) Limitation period extended by its earlier orders dt.

23.03.2020 & 06.05.2020 shall also apply for time period prescribed u/s 23(4) & 29-A of Arbitration and conciliation Act, 1996 and u/s 12-A of the Commercial Courts Act, 2015.

ii) Directs that service of notice, summons and exchange of pleadings/ documents maybe effected by email, fax, commonly used instant messaging services, such as Whatsapp, Telegram, Signal, etc. 4 March 8, 2021 Excluded the period from 15.3.2020 to 14.3.2021 in computing limitation period for any suit, appeal, application, and also excluded the period prescribed u/s 23(4) & 29-A of Arbitration and conciliation Act, 1996 and u/s 12-A of the Commercial Courts Act, 2015 and u/s.138 NI Act, 1881.

5 April 27, 2021 i)Restored the earlier order dt. 23.03.2020 & 08.03.2021 and extended the limitation period as prescribed any general or special laws in respect of all Judicial or Quasi- Judicial Proceedings till further orders.

ii)Period from 14.03.2021 till further orders shall also excluded in computing the period u/s 23(4) , 12-A, 138 . 6 September 23, Excluded the period from 15.3.2020 to 02.10.2021 in 2021 computing limitation period for any suit, appeal, 370/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch S.No. Date Orders of Extension by the Hon'ble Supreme Court U/Article 142 r/w.141 of the Constitution of India application, and also excluded the period prescribed u/s 23(4) & 29-A of Arbitration and conciliation Act, 1996 and u/s 12-A of the Commercial Courts Act, 2015 and u/s.138 NI Act, 1881.

ii) Excluded the period from 15.3.2020 till 28.02.2022 in computing limitation period general or special laws in respect of all Judicial or Quasi- Judicial Proceedings and also excluded the period prescribed u/s 23(4) & 29-A of Arbitration and conciliation Act, 1996 and u/s 12-A of the Commercial Courts Act, 2015 and u/s.138 NI Act, 1881.

8 August 30, 2022 SC dismissed multiple MAs in the limitation extension case as withdrawn - MA 469/2022 was withdrawn with liberty to pursue other legal remedies. 9.61. Order dated 10.01.2022, provided for exclusion of time from 15.03.2020 to 28.02.2022 for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. What may require consideration is the scope of the order dated 10.02.2022 under Article 142 of the Constitution and its impact on the limitation of issuing notices/ passing orders under 371/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Section 73 of CGST Act which requires to be considered. It may be relevant to refer to the following portions of the said order and the same is extracted hereunder:

5.2. Consequently, the balance period of limitation remaining as on 3-10-2021, if any, shall become available with effect from 1-3-2022.

5.3. In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply.

372/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 5.4. It is further clarified that the period from 15-3-2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings."

9.62. A reading of the above order of the Hon'ble Supreme Court dated 10.01.2022 would show that the Hon'ble Supreme Court provided for exclusion of time from 15.03.2020 till 28.02.2022 for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Having examined the order of the Apex Court, it may be necessary to take a look at the notifications issued under Section 168A of CGST Act in particular impugned notifications. The relevant portion of impugned notifications reads as under:

(ii) Notification No.56 of 2023:

9.63. Let us contrast the order's of the Hon'ble Supreme Court, with the impugned notifications issued under Section 168A of CGST Act, it would be clear that the orders of the Hon'ble Supreme Court made under Article 142 of the Constitution, in particular, order dated 10.01.2022 provides for exclusion of the period between 15.03.2020 and 28.02.2022 while reckoning limitation with regard to any judicial/quasi judicial proceedings. On the other hand, impugned notification viz., Notification No.09/2023 and 56/2023 issued under Section 168A of CGST Act provided for extension of time for issuance of notice/order 375/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch under sub-sections (2) and (10) to Section 73 of the CGST Act, for recovery of tax not paid or short paid or input tax credit wrongly availed or utilized as under:

9.64. Having set out the nature of the order under Article 142 of the Constitution by the Hon'ble Apex Court and impugned notifications issued under Section 168A of CGST Act, I shall now deal with the reason as to why the submissions of the petitioner that the order under Article 142 of the Constitution would cease to have effect with the introduction of Section 168A of CGST Act or in any view with issuance of impugned notifications under Section 168A of CGST Act may lack merit.

a) Dichotomy between extension and exclusion of limitation:- 376/422

ii) Consolidated Engg. Enterprises v. Irrigation Deptt. , reported in (2008) 7 SCC 169, wherein while dealing with limitation prescribed under Section 34(3) of Arbitration and Conciliation Act, for an application to set aside an award, which was 3 months with the proviso providing for extension of such period not exceeding one month, and while considering the applicability of Section 14 of Limitation Act which provides for exclusion of time spent before a wrong Court, the distinction between extension and exclusion of limitation was explained as under:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch .....

53. Sub-section (3) of Section 34 of the AC Act prescribes the period of limitation for filing an application for setting aside an award as three months from the date on which the applicant has received the arbitral award. The proviso thereto vests in the court discretion to extend the period of limitation by a further period not exceeding thirty days if the court is satisfied that the applicant was prevented by sufficient cause for not making the application within three months. The use of the words “but not thereafter” in the proviso makes it clear that even if a sufficient cause is made out for a longer extension, the extension cannot be beyond thirty days. The purpose of proviso to Section 34(3) of the AC Act is similar to that of Section 5 of the Limitation Act which also relates to extension of the period of limitation prescribed for any application or appeal. It vests a discretion in a court to extend the prescribed period of limitation if the applicant satisfies the court that he had sufficient cause for not making the application within the prescribed period. Section 5 of the Limitation Act does not place any outer limit in regard to the period of extension, whereas the proviso to sub-section (3) of Section 34 of the AC Act places a limit on the period of extension of the period of limitation. Thus the proviso to Section 34(3) of the AC Act is also a provision relating to extension of period of limitation, but differs from Section 5 of the Limitation Act, in regard to period of extension, and has the effect of excluding Section 5 alone of the Limitation Act .

54. On the other hand, Section 14 contained in Part III of the Limitation Act does not relate to extension of the period of limitation, but relates to exclusion of certain period while computing the period of limitation. Neither sub-section (3) of Section 34 of the AC Act nor any other provision of the AC Act exclude the applicability of Section 14 of the Limitation Act to applications under Section 34(1) of the AC Act. Nor will the 379/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch proviso to Section 34(3) exclude the application of Section 14 , as Section 14 is not a provision for extension of period of limitation, but for exclusion of certain period while computing the period of limitation. Having regard to Section 29(2) of the Limitation Act, Section 14 of that Act will be applicable to an application under Section 34(1) of the AC Act. Even when there is cause to apply Section 14 , the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under Section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. Western Builders [(2006) 6 SCC 239] therefore lays down the correct legal position.”

iii) Ketan V. Parekh v. Enforcement Directorate, reported in, (2011) 15 SCC 30:

9.67. This Court finds that the order of the Hon'ble Supreme Court 383/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch dated 10.01.2022 would continue to govern the limitation inasmuch as it provides for exclusion of time from 15.03.2020 to 28.02.2022 for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, while the impugned notification under Section 168A of CGST Act purports to extend the time limit. Thus, they deal with two different aspects of limitation viz., one relating to computation other relating to period of limitation and there is no overlap.

9.68. Yet another reason to find that even the Government recognized rather maintained the distinction between extension of time limit and exclusion of period, one would only need to look at Notification No.13 of 2022, wherein while exercising the power under Section 168A of CGST Act, it provided for extension and exclusion of time limit for passing order under Section 73(10) of CGST Act. The relevant portion of Notification No.13 of 2022 is extracted hereunder:

The use of the expressions “extension” and “exclusion” in Notification 385/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch No.13 of 2022 would also indicate that the Government which is the notifying authority under Section 168A of CGST Act, was also conscious of the distinction between the two. It is trite law that when in relation to the same subject-matter, different words are used in the same statute, there is a presumption that they are not used in the same sense:

9.69. Importantly, the period that would be available on applying the exclusion of the period from 15.03.2020 to 28.02.2022 in terms of the order of the Hon'ble Supreme Court dated 10.01.2022 and extension of 386/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch time in terms of Notification No.9 of 2023 and 56 of 2023 would be as under:

9.71. Notification under Section 168A of CGST Act can be issued only to extend the time limit and not diminish limitation. It appears to me that the impugned notifications is made without taking into account the effect of the order of the Hon'ble Supreme Court dated 10.01.2022. The notifications appears to have been founded on a mistaken or erroneous assumption on limitation available under Section 73 of CGST Act, while exercising the power under Section 168A of the CGST Act. I say so, inasmuch as it is evident from the above Table, the limitation available for making orders under sub-section (10) to Section 73 of CGST Act, on applying the exclusion of the period from 15.03.2020 to 28.02.2022, in terms of the order of the Hon'ble Apex Court dated 10.01.2022, is much larger than the limitation made available by extending the limitation vide impugned notification issued under Section 168A of CGST Act. Power under Section 168A of CGST Act, being to extend limitation, the impugned notifications diminishing the limitation may not be sustainable. The impugned notifications is based on an erroneous assumption of state of law relating to limitation applicable to 388/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Section 73(10) of the CGST Act and the impact of the orders of the Hon'ble Supreme Court on the limitation under sub section (2) and (10) of Section 73 of CGST Act. It is trite that legislation based on mistaken or erroneous assumption has not the effect of making that the law which the legislature had erroneously assumed to be so. In this regard, it may be relevant to refer to the following judgments :

of A.P. reported in (1996) 3 SCC 75:

9.72. Yet another reason, I would think that the submission of the petitioners must fail, is in view of the fact that by virtue of the order of the Hon'ble Supreme Court under Article 142 of the Constitution, whereby the authorities had a larger period of limitation for issuance of notices and passing orders if found/held to be supplanted/overridden by the impugned notifications whereby the limitation stands diminished/curtailed, it may well affect the vested right of the authorities to take action in terms of the order of the Hon'ble Supreme Court under Article 142 of Constitution of India, which provided for a larger period. It is trite that law of limitation is procedural and would normally have retrospective effect and would govern pending proceedings. There are two exception to the above rule viz.,

a) A new law of limitation providing a longer period cannot revive or dead claim.

b) A shorter period of limitation cannot extinguish vested right of 391/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch action.

In this regard, it may be refer to the following judgments:

10.4.However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right.” 9.73. The impugned notifications which has the effect of diminishing the limitation which may otherwise be available for authorities for issuing notices and passing order under Section 73 of the CGST Act, if one takes into account the exclusion of period between 15.03.2020 to 28.02.2022 as provided by the Apex Court vide its order dated 10.01.2022, results in extinguishing the vested right of action of the authorities by providing for a shorter limitation which cannot be 393/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch sustained in terms of decision referred supra and may well suffer from the vice of arbitrariness thereby offending Article 14 of the Constitution.

d) Diminishing/Curtailing Limitation otherwise available - By issuance of notification – not traceable to Section 168A of CGST Act:

consideration or non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. 9.75. The impugned notification diminishes the limitation available to the authorities to issue notices/pass orders under sub section (2) to Section 73 of CGST Act, by virtue of the order of the Supreme Court dated 10.01.2022 a consequence which is antithetical to the very purpose and object of Section 168A of CGST Act, thus unsustainable. 395/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

10. Conclusion:

ii) Notification Nos.9 and 56 of 2023 stands vitiated and illegal for the following reasons:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

c) The impugned notification results in extinguishing vested right of action with the authorities under CGST Act by diminishing the limitation thus suffers from the vice of arbitrariness.

d) The impugned notification is issued on the basis of recommendation made without examining relevant materials discussed supra and thus stands vitiated.

e) In addition to the above reasons, impugned notification No.56/2023 is made even prior to the recommendations of the GST Council, failure to comply with the statutory mandate renders the notification illegal.

f) The impugned notification no.56/2023 is issued on the basis of the recommendations of GIC which cannot be a substitute for GST Council and thus stands vitiated.

11. There are issues relating to violation of principles of natural justice, lack of jurisdiction, errors apparent on the face of record etc. These are questions which will have to be re examined by the assessing authority inasmuch as the thrust of the petitioner's submissions before this Court as well as before the authorities has been primarily on the 397/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch jurisdiction in view of the challenge to the validity of the notification.

12. In light of the present order, this Court is inclined to remand all the matters back to the assessing authority for passing orders afresh:

13. Accordingly, the writ petitions stand disposed of. No costs. Consequently, connected miscellaneous petitions are closed. 398/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 12.06.2025 Speaking (or) Non Speaking Order Index : Yes/ No Neutral Citation: Yes/No spp/mka/kmm 399/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch To :

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

7. Assistant Commissioner (ST), Vallvarkottam, Zone-VI, M.B.M, M. Phil, Station No. 1, 6th Floor, P.A.P.J.M. Annex Building, Greams Road, Chennai-600006.

8.The Deputy State Tax Officer – I, Valluvarkottam Assessment Circle, Station: No.10, Palaniappa Maligai, 4th Floor, Greams Road, Chennai – 600006.

9.Assistant Commissioner (ST) Kilpauk Circle F-50, 1st Avenue, 3rd Floor, Anna Nagar East, Chennai - 600102

10. The State Tax Officer, Office of Sales Tax Officer, Perundurai Circle, Perundurai, No.299, Bhavani Road, Perundurai -638 052.

11. The Bank Manager, Kotak Mahindra Bank Limited, Erode

12. Deputy State Tax Officer – II, Arumbakkam Assessment Circle.

13. The Superintendent of CGST and Central Excise Egmore Range - II, Egmore Division of GST and Central Excise, Chennai North Commissionerate, First Floor, Newry Towers, Plot No.2054, I Block, II Avenue, 12th Main Road, Anna Nagar, Chennai - 600 040.

14.The Central Board of Indirect Taxes and Customs Department of Revenue, Ministry of Finance, 401/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Represented by its Chairman North Block, New Delhi - 110 001.

15. Deputy State Tax Officer – 1, Anupparpalayam Assessment Circle, Tiruppur – 1, No.16, Emperor Building, Ground Floor, Indira Nagar 1st Street, Avinashi Road, Tiruppur - 641 603, Tamilnadu.

16. The State Tax Officer, O/o The Commercial Tax Officer, Tindivanam Assessment Circle, Villupuram Zone, Cuddalore Division, Cuddaalore, Tamil Nadu.

17. The State Tax Officer, O/o. The Commercial Tax Officer, Kumarapalayam Circle, Namakkal, Salem, Tamilnadu.

18.The Branch Manager, State Bank of India, 226, Salem Main Road, Kumarapalayam - 638 183

19. The Deputy State Tax Officer - I (ST), Office of the Deputy Commercial Tax Officer, Thindal Assessment Circle, D.No.161, Brough Road, Erode - 638 003.

20. Assistant Commissioner (ST) (FAC) Tambaram Assessment Circle, Integrated Commercial Taxes Department Building 3rd Floor, Room No.336, Nandanam, Chennai- 600 035.

402/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

21. Superintendent of CGST & Central Excise, Pallipalayam Range, 81, Bharathi Nagar, Soolai, Erode – 638004.

22. The Assistant Commissioner (ST)(FAC), Kancheepuram Rural Assessment Circle, CT Building, 1st Floor, Collectorate Campus, Kancheepuram – 631 501.

23. The Assistant Commissioner (ST) (FAC), Group -XIV, Intelligence-I, PAPJM Building No.1, Greams Road, 2nd Floor, Chennai-600 006.

24. The Assistant Commissioner (ST) (FAC), Group – XIV, Intelligence - I, PAPJM Building, No.1, Greams Road, 2nd Floor, Chennai-600 006.

25.The Additional Commissioner Office of the Commissioner of CGST and Central Excise, Chennai North Commissionerate, No. 26/1, Mahatma Gandhi Road, Chennai – 600034.

26.The Joint Commissioner Office of the Commissioner of Central Tax and Central Excise, Audit-I, Commissionerate, No.1775, Jawaharlal Nehru Inner Ring Road, Anna Nagar West Extension, Chennai-600101.

27. Union of India Through Secretary, Ministry of Finance, Department of Revenue, 403/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Udyog Bhawan, New Delhi - 110001.

28.Central Board of Indirect Taxes Ministry of Finance, Department of Revenue, Udyog Bhawan, New Delhi - 110 001.

29.Assistant Commissioner (ST) Arumbakkam Assessment Circle, 4th Floor, PAPJM Annexe Building, Greams Road, Chennai - 600 006.

30. The Assistant Commissioner of GST & Central Excise, Ponneri Division, Office of the Chennai outer Commissionerate, Room 40, A1, 100 feet road, Mogappair, Chennai - 600037.

31.The Superintendent of GST and Central Excise, Madhavaram Outer Range, Room No.40, A1, 100, TNHB Complex, Mogappair, Chennai – 600037.

32. Asst Commissioner (ST )(FAC ) Intelligence - I, Room No.133, 1st Floor, PAPJM Building, No.1, Greams Road, Chennai – 600 006.

33. The State Tax Officer, Ayanavaram Assessment Circle, No. 1, Greams road, Chennai-6.

34. The Assistant Commissioner (ST)(FAC), Intelligence-I, Room No.241, 404/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 2nd Floor, No.1, PAPJM Buildings, Greams Road, Chennai - 600 006.

35.The State Tax Officer (ST), Group-X, Intelligence I, Office of the Joint Commissioner (ST), Intelligence-I, No.1, 4th Floor, PAPJM Buildings, Greams Road, Thousand Lights, Chennai-600 006.

36.The Assistant Commissioner (ST), Amaindakarai Assessment Circle, 3rd Floor, PAPJM Building, Greams Road, Chennai 600 006.

37.The Branch Manager, Federal Bank, C-18, TNHB Complex, 2nd Avenue, Anna Nagar, Chennai - 600040.

38. Deputy State Tax Officer (Intelligence), Adjudication & Legal Wing, 3/47, Sapthagiri Complex, Thorapalli Agraharam Village, Adjacent to Ashok Leyland Unit -II, Gandhi Nagar, Hosur Tk, Krishnagiri Dt., Tamil Nadu - 635 109.

39.Union of India (Rep. by the Ministry of Finance), Raj Path Marg, “E” Block, Central Secretariat, New Delhi - 110 011.

40. State of Tamil Nadu, (Rep. by its Secretary), Commercial Taxes Department, Fort St. George, Chennai - 600 009.

405/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

41. State Tax Officer, Alandur Assessment Circle, Room No.352, 3rd Floor, Integrated Building for Commercial Taxes & Registration Departments (South Tower), Nandanam, Chennai - 035.

42.State Tax Officer, Avadi Assessment Circle Survey No.1275/3, Integrated Commercial Taxes Building, (Tiruvallur Division), 1st Floor, Room No. 122, Elephant gate Bridge Road, Vepery, Chennai - 600 003.

43. The Assistant Commissioner (ST) (FAC), Intelligence I, Room No.241, 2nd Floor, No.1, PAPJM Building, Greams Road, Chennai -600 006.

44.The State of Tamil Nadu, Represented by Secretary to Government Commercial Taxes and Registration (B1) Department Fort St. George, Chennai 600 009.

45. Assistant Commissioner (State Tax) (FAC) Peelamedu South Circle Coimbatore III TamilNadu – 641004.

46.Assistant Commissioner (State Tax) (FAC) Avinashi Road Circle, C.T. Buildings, Dr. Balasundaram Road, Coimbatore Tamil Nadu- 641018

47. The Assistant Commissioner (ST), Adyar Assessment Circle, 406/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 2nd Floor, Room No.215, The Integrated Building for Commercial Taxes & Registration Department, (South Tower), Nandanam, Chennai- 035.

48. The Assistant Commissioner (S.T), Villivakkam Assessment Circle, PAPJM Annexue Building, 2nd Floor, No.1, Greams Road, Chennai- 600 006.

49.The Commercial Tax Officer, Villivakkam Assessment Circle, PAPJM Annexure Building, 2nd Floor, No.1, Greams Road, Chennai-600 006.

50. The Deputy Commissioner (Appeal), GST Appeal, Integrated Building for Commercial Taxes and Registration Department, (South Tower), Nandanam, Chennai – 35.

51.The State Tax Officer, Alandur Assessment Circle, Commercial Taxes Department, Room No.352, 3rd Floor, Integrated Building for Commercial Taxes and Registration Department, (South Tower), Nandanam, Chennai-35

52. M/s. Axis Bank, T. Nagar Branch, Mr. Krishna Dass, 113, GN Chetty Road, T. Nagar, Chennai- 600 017.

53. Assistant Commissioner (ST) Ponneri Assessment Circle, Integrated Commercial Taxes Building (North) Division, First Floor, Room No. 106, No 32, Elephant Gae Bridge Road, Vepery, 407/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Chennai -600 003.

54. The Assistant Commissioner (ST)(FAC), Hosur (South -I), Krishnagiri.

55.Commercial Tax Officer Kundrathur Assessment Circle Station: No. 4/109, 1st Floor, Bangalore Chennai Highway, Varadarajapuram, Nazarathpet, Chennai - 600 123.

56. Assistant Commissioner, Kilpauk, Central II, Chennai Central.

57. The State Tax Officer, Office of the Commercial Tax Officer, Gudalur Assessment Circle, The Nilgiris Coimbatore, Tamil Nadu.

58. The Assistant Commissioner (ST), Krishnagiri- I Circle, Krishnagiri.

59. The Assistant Commissioner, (ST) (FAC) Thiruvottiyur Assessment Circle, Integrated Commercial Taxes Building, No.32, Elephant Gate Bridge Road,Vepery, Chennai - 600003.

60. Deputy Commissioner (GST Appeal), Chennai- I, Room No.230, Second Floor, Commercial Tax Office Campus Main Building, 408/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch No.1, Greams Road, Thousand Lights, Chennai 600 006..

61. The Deputy State Tax Officer - 1, Ekkatuthangal Assessment Circle, 571, Integrated Commercial Taxes and Registration Department (South Tower), Room No.306, 3rd Floor, Nandanam Chennai - 600 035.

62. The State Tax Officer Office of the Commercial Tax Officer, Sathyamangalam, Erode, Tamilnadu.

63. The Assistant Commissioner, Thiruverkadu Assessment Circle, Poonamallee, Kancheepuram, Tamil Nadu.

64. Deputy Commissioner (ST), GST Office, Thiruverkadu Assessment Circle, Poonamallee Zone, Varadharajapuram, Chennai 600123.

65. The Assistant Commissioner (ST)(FAC) Peelamedu South Circle, Coimbatore.

66.The Commissioner of State Tax, Tamil Nadu Having his office at Ezhilagam, Chepauk, Chennai-600005

67.The Assistant Commissioner (ST), Pondy Bazaar Assessment Circle 409/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Having his office at No. 46, Mylapore Taluk Office Building, 2nd Floor, Green Ways Road, R A Puram, Chennai, Tamil Nadu- 600028

68.The State Tax Officer (ST) Group-XII/ Inspection, Intelligence-I, Chennai-6 Having his office at No. 1, PAPJM Buildings, Greams Road, Thousand Lights, Chennai, Tamil Nadu- 600006

69. The Union of India Represented by the Secretary, Department of Revenue, Ministry of Finance, No.137, North Block, New Delhi -110 001.

70.The Goods & Services Tax Council GST Council Secretariat Represented by its Chairman 5th Floor Tower II Jeevan Bharti Building Janpath Road, Connaught Palace New Delhi - 110 001.

71.Central Board of Indirect Taxes & Customs Represented by its Director (CBIC) North Block, New Delhi - 110 001.

72.The State of Tamil Nadu Represented by its Secretary to Government Commercial Taxes and Registration B1 Department Secretariat, Fort St George, 410/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch Chennai - 600 009.

73.Principal Secretary/ Commissioner of Commercial Taxes Commercial Taxes Department Ezhiligam, Chepauk, Chennai - 600 005.

74.The Assistant Commissioner (ST), Thirukazhukundram Assessment Circle, No.42, Wahab Nagar, Thirukazhukundram - 603 109.

75. The Assistant Commissioner (ST), Thirukazhukundram Assessment Circle, No.42, Wahab Nagar, Thirukazhukundram - 603 109.

76. The Deputy State Tax Officer – 1, Trichy Road Circle, Coimbatore 18.

77. The Union of India, Represented by the Secretary, Department of Revenue, Ministry of Finance, No.137, North Block, New Delhi - 110 001.

78.The Goods & Services Tax Council, Represented by its Secretary, GST Council Secretariat, 5th Floor, Tower - II Jeevan Bharti Building, Janpath Road, Connaught palace, New Delhi - 110001.

79.Central Board of Indirect Taxes and Customs, Represented by its Chairman, 411/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch North Block, New Delhi - 110001.

80.The State of Tamil Nadu Represented by its Secretary to Government Commercial Taxes and Registration Department Secretariat, Fort St. George, Chennai - 600 009.

81.The Deputy Commissioner (ST)- II, Large Tax Payer's Unit, South Tower, Integrated Commercial Tax Building, Nandanam, Chennai- 600035.

82. The Assistant Commissioner (ST), Thirukazhukundram Assessment Circle, No.42, Wahab Nagar, Thirukazhukundram - 603 109.

412/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch MOHAMMED SHAFFIQ, J.

spp/mka/kmm W.P. No.17184 of 2024 etc., batch 12.06.2025 413/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 14.07.2025 CORAM THE HONOURABLE MR JUSTICE MOHAMMED SHAFFIQ W.P.Nos.17184, 22511, 22516, 34667, 36344, 36347, 36599, 36604, 36611, 36872, 36876, 37543, 37546, 37551, 1505, 15584, 15621, 1497, 1514, 6472, 6476, 6485, 9899, 9906, 9904, 12122, 12289, 12293, 12351, 12567, 13311, 13317, 17397, 18677, 18803, 19886, 20107, 20370, 22028, 8640, 8645, 8650, 23081, 24082, 24084, 24186, 24190, 24355, 24716, 25516, 26065, 26073, 28509, 29273, 29276, 29709, 29704, 29729, 30646, 30653, 30655, 30657, 30906, 31395, 31397, 31396, 32236, 32807, 32845, 33104, 33392, 33451, 33456, 33459, 33578, 33729, 33752, 33756, 33824, 33828, 33877, 33880, 33885, 34203, 34243, 34271,34532, 34558, 34561, 34823, 34884, 34887, 34963, 35108, 35173, 35430, 35626, 35650, 35779, 35857, 35907, 36169, 36172, 36176, 36602, 36605, 36699, 36704, 36999, 37035, 37042, 37048, 37056, 33112, 37059, 37085, 37331, 37490, 37495, 37498, 37501, 37607, 37688, 37693, 37838, 38092, 38094, 38204, 38218, 38226, 38232, 38338, 38341, 38342, 38360, 38364, 38608, 38930, 38944, 38947, 38940, 38943, 38977, 38998, 39004, 39058, 39260, 39270, 39282, 39333, 39338, 39342, 39396, 39489, 39492, 39495, 39500, 39502, 39503, 39504, 39507, 39773, 39775, 39781, 39787, 39790, 39793, 39776, 39778, 39782, 39784, 39785, 39779, 39780, 39976 & 40064 of 2024 and W.M.P. Nos.21218, 37603, 39226, 39489, 39480, 39477, 39470, 39488, 39472, 39837, 39839, 40583, 40586, 40587, 40594, 40591, 40593, 16980, 1513, 1515, 1517, 16979, 17013, 1522, 1528, 1532, 16977, 2895, 2876, 7210, 7190, 7193, 7211, 7191, 7194, 7730, 10913, 10918, 10919, 10908, 13387, 13464, 13218, 13390, 13398, 13721, 13465, 13720, 14464, 14469, 14466, 19165, 19166, 20480, 20635, 21761, 21763, 22008, 22292, 24006, 9653, 9626, 25185, 25183, 26331, 26330, 26332, 26333, 26449, 26454, 26614, 27031, 27034, 27882, 27883, 28481, 28478, 31082, 31923, 31927, 32363, 32364, 32391, 32395, 36180, 33261, 33262, 33270, 33271, 36179, 34072, 34077, 34075, 35021, 414/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 35638, 41554, 35637, 35678, 35675, 35858, 36177, 36178, 36236, 36232, 36234, 36238, 36369, 36371, 36526, 36546, 36549, 36555, 36642, 36643, 36648, 36649, 36690, 36695, 36696, 36697, 36699, 36702, 36692, 36705, 36706, 37031, 37030, 37088, 37086, 37087, 37122, 37121, 37432, 37433, 37469, 37470, 37472, 37771, 37768, 37820, 37818, 37816, 37922, 37925, 38035, 38037, 38083, 38080, 38314, 38313, 38485, 38487, 38506, 38507, 38649, 38651, 38719, 38720, 38773, 38775, 39052, 39054, 39058, 39062, 39063, 39057, 39476, 39479, 39481, 39475, 39604, 39605, 39600, 39599, 39964, 39963, 40009, 40016, 40018, 40025, 40026, 40008, 40033, 40039, 35869, 40036, 35868, 40040, 40067, 40353, 40351, 40533, 40517, 40524, 40531, 40515, 40528, 40525, 40527, 40649, 40650, 40751, 40748, 40753, 40908, 40910, 41213, 41218, 41217, 41329, 41331, 41366, 41363, 41351, 41353, 41520, 41523, 41525, 41521, 41527, 41528, 41547, 41548, 41550, 41551, 41806, 41807, 42156, 42176, 42175, 42155, 42182, 42183, 42157, 42181, 42185, 42219, 42220, 42239, 42248, 42246, 42241, 42306, 42305, 42527, 42528, 42532, 42533, 42543, 42541, 42596, 42598, 42601, 42600, 42606, 42605, 42671, 42670, 42750, 42751, 42753, 42759, 42760, 42754, 42772, 42773, 42769, 42764, 42770, 42771, 42765, 42768, 42776, 42778, 43083, 43098, 43102, 43103, 43093, 43094, 43097, 43072, 43066, 43071, 43065, 43086, 43084, 43085, 43078, 43087, 43080, 43075, 43077, 43081, 43089, 43079, 43074, 43082, 43090, 43091, 43280, 43279, 43340, 43339 of 2024 and W.P.Nos. 34065, 34073, 34074, 35455, 35463, 35458 of 2023 and W.M.P.No.35436, 35431, 35435, 35429, 35436, 35427 of 2023 and W.P.Nos. 94, 173, 177, 178, 196, 198, 200, 207, 210, 372, 970, 1221, 1224, 1297, 1324, 1396, 1401, 1404, 1720, 1730, 1736, 1922, 1927, 1974, 1984, 1982, 2031, 2037, 2034, 2035, 2041, 2078, 2229, 2350, 2412, 2592, 2788, 2794, 2848, 3122, 3138, 3195, 3338, 3386, 3443, 3577, 3766, 3883, 3886, 3905, 3942, 4223, 4443, 4510, 4515, 4519, 4558 of 2025 and W.M.P.Nos. 117, 115, 177, 179, 185, 184, 186, 187, 210, 212, 215, 217, 415/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch 228, 230, 231, 227, 423, 418, 420, 1193, 1191, 1467, 1468, 1469, 1471, 1546, 1543, 1577, 1579, 1645, 1640, 1644, 1647, 1638, 1648, 1969, 1970, 1984, 1981, 2197, 2195, 2203, 2204, 2574, 2573, 2672, 2722, 2721, 2910, 2912, 2309, 2310, 2319, 2316, 2375, 2377, 2367, 2369, 2370, 2371, 2372, 2373, 2381, 2438, 2440, 3115, 3112, 3113, 3114, 3150, 3151, 3435, 3436, 3459, 3460, 3541, 3543, 3705, 3706, 3758, 3760, 3829, 3830, 3959, 3960, 4321, 4323, 4713, 4714, 4179, 4180, 4301, 4303, 4305, 4373, 4955, 5024, 5026, 5030, 5031, 5036, 5039, 5040, 5041, 5074, 5075 of 2025 and W.P.(MD).Nos.1116, 1918, 1919, 12870, 16409, 5687, 1644, 1645, 1646, 5280, 6155, 7311, 6967, 7320, 7485, 7729, 7730, 7734, 7735, 7736, 7874, 9598, 9599, 10048, 10049, 10628, 10674, 11930, 12505, 15016, 16073, 16541, 16715, 23146, 23643, 23652, 23653, 24685, 25442, 26353, 25639, 25932, 25970, 26218, 26219, 26220, 27295, 27634, 27632, 27635, 28242, 29198, 29952, 29951, 30180, 30276, 30277, 30312, 30487, 31166, 31459 of 2024 and W.M.P.(MD) Nos. 11442, 14223, 5381, 1927, 1143, 1142, 11441, 5382, 1928, 19737, 19734, 1683, 1682, 1686, 1687, 1688, 1681, 1685, 19736, 1684, 5062, 5063, 5775, 6736, 6729, 6491, 6737, 6490, 6728, 6874, 6870, 7070, 7071, 7074, 7073, 7076, 7081, 7079, 7082, 7077, 7084, 7165, 7167, 8698, 8727, 8728, 9084, 9085, 9086, 9511, 9512, 9550, 9553, 10628, 11163, 11165, 11166, 13180, 13181, 13963, 13965, 14323, 14324, 14465, 14466, 19616, 19617, 20023, 20021, 20059, 20061, 20029, 20030, 21011, 21010, 21744, 22331, 22332, 21742, 21592, 21593, 21999, 21998, 22032, 22034, 22223, 22224, 22225, 22220, 22221, 22222, 23451, 23452, 23455, 23456, 23953, 23954, 24699, 24700, 25230, 25235, 25231, 25234, 30180, 25399, 25398, 25477, 25470, 25476, 25469, 25497, 25499, 25620, 25621, 26133, 26134, 26340, 26339, 23115, 23117, 23158, 23163 of 2024 and W.P.(MD)Nos.510, 625, 1366, 1369, 1370, 1367, 1368 & 1517 of 2025 and W.M.P.(MD)Nos.363, 364, 415, 416, 940, 941, 948, 949, 955, 958, 982, 983, 989, 991, 1094, 1095 of 2025 416/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch ORDER MOHAMMED SHAFFIQ, J.

The above cases are listed under the caption 'for being mentioned' at the instance of the learned counsel on either side.

2. It is pointed out by the learned counsel on either side that the names of some of the counsel for the parties have been omitted to be mentioned in the appearance column of order dated 12.06.2025.

3. The learned Special Government Pleader, Mr.Harsha Raj, would submit that though may not have any bearing on the outcome of the writ petitions, to ensure certainty and clarity, this Court may clarify the position relating to Circular dated 20.07.2021. The above request is accepted as it would not cause any prejudice, more importantly, counsel appearing on behalf of petitioners consented to the clarification being made. He would state that Circular dated 20.07.2021 would have no bearing on the issues raised and decided in this batch of writ petitions for the following reasons viz., 417/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

(i) Order of the Supreme Court dated 10.01.2022 which is relied upon in the judgment is subsequent to the circular dated 20.07.2021.

(ii) Any Circular contrary to the Supreme Court cannot be sustained as held in the case of Commissioner of Central Excise, Bolpur v. Ratan Melting & Wire Industries , reported in (2008) 13 SCC 1.

(iii) In any view though Circular itself came to be issued on the basis of Notifications under Section 168A of CGST Act, which has been found to be invalid thus the above Circular may have no bearing on the outcome of the present writ petitions.

4. Registry is directed to carryout the following changes in the appearance portion of the order dated 12.06.2025:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

ii) Mr.S.Muralidhar, Senior Advocate assisted by Mr.N.Sriprakash and Mr.N.Murali for petitioners in W.P.Nos.34065, 34073 and 34074 of 2023.

iii) Mr.ARL.Sundaresan, Additional Solicitor General assisted by Mr. Rajnish Pathiyil, Senior Standing Counsel for R1 to R3, R6 and R7 in W.P.Nos.34065, 34073 and 34074 of 2023.

b) To substitute the name of the following counsel against the corresponding writ petitions in the appearance table:

https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

5. Following shall be added as S.No. (g) in Para-10 (ii) to the said order :-

So giving effect to a circular of the State or Central Government in preference to precedent of High Court or Supreme Court, held, is not appropriate.14

(ii) Moreover, Circular dated 20.07.2021 is prior to the order dated 10.01.2022 of the Supreme Court excluding the timelines and also extending the limitation. In view thereof the above circular is not relevant nor have any bearing on the reasoning nor conclusion arrived at by this Court.

(iii) In any view, Circular itself came to be issued on the basis of impugned Notifications under Section 168A of CGST Act, the impugned notifications itself having been found to be invalid, the above Circular loses relevance.

14. Commissioner of Central Excise, Bolpur v. Ratan Melting & Wire Industries , reported in (2008) 13 SCC 1 420/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch

6. Except the above modification, all other paragraphs made in the earlier order dated 12.06.2025 shall remain intact. Registry is directed to carry out the above corrections and issue the corrected order copy to the parties forthwith.

14.07.2025 spp 421/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm ) W.P.Nos.17184 of 2024 etc., batch MOHAMMED SHAFFIQ, J.

spp W.P. No.17184 of 2024 etc., batch 14.07.2025 422/422 https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/08/2025 07:08:38 pm )