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2019 (5) TMI 568 - HC - GSTChallenge to an order passed by the National Anti-Profiteering Authority (NAPA) - validity of constitution of the NAPA - HELD THAT:- Under Rule 122 (a) of the CGST Rules the NAPA consists of a Chairman who holds or has held a post equivalent in rank to the Secretary of Government of India. Under Rule 122 (b) the 4 technical members are those who are or have been Commissioners of State Tax or Central Tax for at least one year or have held an equivalent post under the existing law. The Chairman and Members of the NAPA are to be nominated by the GST Council. In other words, there is no judicial member in the NAPA. As far as the facts of the present case are concerned, one grievance is that although the Petitioners deal in as many as 393 products, and even according to the NAPA they are compliant in regard to the price of many of such products, the NAPA has been selective in drawing an adverse conclusion in respect of the price charged for a few of the products. It is open to Petitioner No.1, notwithstanding the reduction in the rate of tax after 15 November 2017 to raise the base price of the product so that the ultimate price payable by the customer inclusive of tax remains what it was prior to 15 November 2017. Mr. Rohatgi points out that simultaneously with the reduction of tax the ITC was taken away and this is an additional factor that has to be considered while determining whether the Petitioner could be held to be a “profiteer‟ from the reduction of rate of tax. The Petitioners are required to deposit an amount of ₹ 41,42,97,629.35 with the Central and State Consumer Welfare Funds in a 50:50 ratio - subject to the Petitioners depositing the sum of ₹ 20 crores with the Central CWF within a period of four weeks from today, there shall be a stay of the impugned order dated 31st January 2019 of the NAPA as well as stay of further proceedings pursuant to the impugned notice dated 4th February 2019 issued by the Respondent No.2.
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