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2021 (2) TMI 558 - HC - GSTExclusion of ice cream from the benefits of Composition Scheme under Section 10 of CGST Act - violation of the spirit of Articles 14 and 19 of the Constitution of India or not - violation of principles of natural justice or not - It is the argument of the counsel for the petitioner that ice cream comprises of a large number of other components which are assessable to GST and thus the reasoning emanating from the minutes of the impugned meeting of the respondent no.2 GST Council for excluding ice cream from the benefit of Section 10(1) of the Act, is fallacious - HELD THAT:- A reading of Section 10(2)(e) of the Act shows that no parameters, whatsoever, on the anvil of which, the respondent no.2 GST Council may recommend for notification, any goods from the benefit of Section 10(1) of the Act, have been prescribed. The legislature has vested the Government with absolute discretion, to exempt whichsoever goods it may deem necessary, from the benefit of Section 10(1) of the Act. The only limitation placed on the Government is, to act on the recommendation of the GST Council, established under Article 279A of the Constitution of India. The said GST Council comprises of Union Finance Minister, Union Minister of State in charge of Revenue or Finance and the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government. It will thus be seen that the GST Council is a high powered constitutional entity. It is well settled that a State does not have to tax everything in order to tax something and it entitled to pick and choose, if it does so reasonably. Mention may also be made of STATE OF JAMMU AND KASHMIR AND ANOTHER VERSUS M/S. TRIKUTA ROLLER FLOUR MILLS PVT. LTD. AND ANOTHER, SANSAR OIL MILLS AND ANOTHER, R.C. FLOUR MILLS AND ANOTHER, SUDERSHAN STEEL (P) LTD., JAMMU STEEL INDUSTRIES AND ANOTHER, BARI BRAHMA INDUSTRIAL ASSOCIATION AND OTHERS AND K.B. ROLLER FLOUR MILLS [2017 (8) TMI 678 - SUPREME COURT] holding that grant of refund on CST paid, to boost entrepreneur investment, was primarily an executive economic policy decision, the scope of judicial scrutiny and interference wherewith is limited to on the grounds of mala fide, unreasonableness, arbitrariness or unfairness and that there is no legal or indefeasible right to claim refund of CST paid. To the same effect is UGAR SUGAR WORKS LTD. VERSUS DELHI ADMINISTRATION AND ORS. [2001 (3) TMI 1008 - SUPREME COURT]. The only direction which can be issued in this petition is, to direct the respondent no.2 GST Council to reconsider the exclusion of small scale manufactures of ice cream from the benefit of Section 10(1) of the Act, including on the aforesaid two parameters i.e. the components used in the ice cream and the GST payable thereon and other similar goods having similar tax effect continuing to enjoy the benefit - The respondent no.2 GST Council to take up the aforesaid aspect in its next meeting and to take a decision thereon at the earliest, keeping in view that the ice cream season has just begun, and preferably within three months of today. The petition is disposed of.
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