Order of the High Court of Gujarat
[dated 02.08.2024, in Shree Balaji Engineering Services v. Union of India, from R/Special civil application no. 11281 of 2024]
Inter alia, the petitioner had challenged the vires of section 16(2)(c) of the CGST Act. Citing the decision of the Hon'ble Apex Court in Assistant Commissioner of State Tax v. M/s. Commercial Steel Ltd. in Civil Appeal No.5121 of 2021 rendered on 03.09.2021, it was opined that alterative efficacious remedy of appeal is available to the petitioner under section 107 ibid. Consequently, the writ petition was dismissed.
Comments
At the outset, the Hon'ble Apex Court in Assistant Commissioner of State Tax v. M/s. Commercial Steel Ltd. (referred supra) had stated that a writ petition can be entertained under exceptional circumstances like:
- Breach of fundamental rights;
- Violation of principles of natural justice;
- Excess of jurisdiction; and
- Challenge to the vires of the statute or delegated legislation.
In the current instance, the petitioner had challenged the vires of the statute. It is impossible for an appellate authority (who is a creature of the statute) to declare a provision in the same statute as ultra vires. Given this, it is not clear how the alternate remedy of appeal can be efficacious.
