Master Instruction on Defence against Writ Petitions/PILs relating to GST - Service Tax - S-29012/12/2017-ST-1-DoR

No. S-29012/12/2017-ST-1-DoR Government of India Ministry of Finance (Department of Revenue) (State Taxes Division) Central Board of Indirect Taxes Customs, New Delhi 275, North Block, New Delhi Dated the 27 th November, 2017 INSTRUCTION To, 1. All the Chief Secretaries of States Union Territories, Secretary (FinanceI Taxation), Commissioner (Commercial Taxes) of the States; 2. All Principal Chief Commissioners/ Chief Commissioners of Customs, GST CX; 3. All Principal Director Generals/ Director Generals of Customs, GST CX; Sir / Madam, Subject : Master Instruction on Defence against Writ Petitions/ PILs relating to GST - Regarding. Kindly refer to Member (Legal), CBEC s D.O. letter of even no. dated the 5th September, 2017 (copy available on CBEC website) (not printed) on the above subject. 2. In this regard, it is stated that after implementation of GST a number of Writ Petitions/PILs are being filed in Hon ble Supreme Court High Court(s) challenging various aspects of GST Law and rates. Since GST is at its nascent stage, CBEC has already issued a number of Instructions laying out the procedure for efficaciously defending the interest of Government before the Court(s). 3. In order to obviate any confusion amongst the field formations and to efficaciously defend the interest of government before the Hon ble High Court(s), you are requested to direct the formations under your jurisdiction to comply with the following directions : a. Nodal Cell under CBEC - Nodal Cell headed by Commissioner (Legal), CBEC has been created in order to effectively coordinate and monitor the all GST related cases filed/pending before the Hon ble High Court(s). Similarly, Nodal Cell headed by Commissioner (Directorate of Legal Affairs), CBEC has been created in order to effectively coordinate and monitor the all GST related cases filed/pending before the Hon ble Supreme Court. The new cases or any updates in other cases, as and when received by the concerned officer/field formations etc., may be intimated to the respective Nodal Cell of CBEC. The phone number of the Nodal Cell for High Court is 011-26161042 and email ID is commr.legal-cbec@nic.in. The phone number of the Nodal Cell for Supreme Court is 011-23219071 and email ID is dla-rev@nic.in. b. Issuance of Unique Index Number - Commissioner (Legal)/Commissioner (DLA), CBEC will assign a unique Index Number to all High Court(s)/Supreme Court cases respectively, filed under GST regime, which will remain unchanged and may be used for all future references/correspondences. c. Issuance of Authorisation to defend UoI, States other respondent(s) - To defend UoI and other Central Government respondents in GST related matters before the High Court(s), Commissioner (Legal), CBEC will issue Authorisation in favour of the jurisdictional Principal Commissioner/Commissioner. In case no jurisdictional officer is joined as respondent(s), Legal Cell will issue Authorisation in favour of the concerned nodal Principal Commissioner/Commissioner in whose jurisdiction the bench of the High Court, where petition is filed, is located. In this regard CBEC Instruction of even no. dated 19-6-2015 8-12-2015 refers (Copy available on CBEC website and being enclosed herewith). The field formations are also expected to closely monitor GST related petitions being filed in the Hon ble High Court(s) in their jurisdiction and upon filing of the petition, the same should be immediately brought to the notice of Commissioner (Legal), CBEC for issuance of Authorization. It is stated that it is the prerogative of the CBEC to authorize any Principal Commissioner/Commissioner to defend the UoI and others before the High Court(s). No transfer of Authorization should be done on unilateral basis and a reference should be made to Commissioner (Legal) clearly pointing out the reasons for change in the Authorization. The decision of the CBEC in this regard would be final. It is also stated that CBEC will not issue authorization for GSTN as it is a Private Limited Company; d. Policy Comments on the impugned issue - To ensure uniformity of views in all cases filed before the High Court(s) under the GST regime filed across the country, it is desirable that comments should be sought directly from the concerned Wing of the Department as per Table below. It is expected that the authorized Principal Commissioner/Commissioner will carefully examine the petition and send a self-contained reference directly to the concerned wing as per Table below, under intimation to Commissioner (Legal), CBEC, clearly pointing out the exact policy issue(s) on which the comments are required. The authorized Principal Commissioner / Commissioner should not mechanically forward the petition for para-wise comments. The mandate of the concerned Wing of the CBEC/Department of Revenue/GST Council, is to give inputs on the specific policy issue(s). The subject-wise concerned Policy Wing of the CBEC/Deptt. of Revenue are as follows : Sl.No. Designation Area of Work Allocated 1. Commissioner (GST) Notifying jurisdiction of formations of GST; All CGST Act related work except in respect of Chapter V (Input Tax Credit), Chapter XIV (Inspection, Search, Seizure and Arrest), Chapter XVII (Advance Ruling), Chapter XVIII (Appeals Revision), Chapter XIX (Offences Penalties), and Chapter XX (Transitional Provisions); All IGST Act related work except in respect of Chapter V (Place of supply). 2. Commissioner (Service Tax) All IGST Act related work, in respect of Chapter V (Place of supply). 3. Commissioner (Central Excise) All CGST Act related work in respect of Chapter V (Input Tax Credit) and Chapter XX (Transitional Provisions). 4. Commissioner (Inv- GST) All CGST Act related work in respect of Chapter XIV (Inspection, Search, Seizure and Arrest) and Chapter XIX (Offences Penalties). 5. Commissioner (Legal) All CGST Act related work in respect of Chapter XVII (Advance Ruling) and Chapter XVIII Appeals Revision (Only in respect of HC SC). 6. Commissioner (IT Compliance Verification)/ Member (IT) Coordination with GSTN. 7. Joint Secretary (Review) All CGST Act related work in respect of Chapter XVIII-Appeals and Revision (Except HC SC). 8. Commissioner (Customs EP) GST related Customs Work 9. Joint Secretary (Customs) Work related to IGST Customs Interface 10. Commissioner (PAC) Audit related work in GST by CAG 11. Joint Secretary (Drawback) GST related work pertaining to Drawback and Export Promotion Schemes 12. Joint Secretary (TRU-I) Matters pertaining to tax rate on goods 13. Joint Secretary TRU-II Matters pertaining to tax rate on services 14. Joint Secretary Revenue), Department of Revenue Work related to Constitution amendment act, GST (Compensation to States) Act, UTGST Act, Compensation Cess and erstwhile Central Sales Tax Act. e. Defence of GST Council wherein it is one of the respondents - CBEC has already issued Instruction of even no. dated 12-10-2017 (Copy available on CBEC website enclosed herewith) asking the field formations to take all necessary steps to defend GST Council along with UoI Others in cases before the Hon ble High Court(s). The said Instruction should be scrupulously followed; f. Providing all necessary and timely assistance to the Government Counsels - CBEC has issued Instruction of even no. dated 9-11-2017 (Copy available on CBEC website and enclosed herewith) directing all the field formations to provide all necessary and timely assistance to the Government Counsel in order to efficaciously defend the interest of Government before the Hon ble High Court(s). Further all efforts should be made to engage senior government counsels to defend GST related cases; g. Coordination with State Governments - CBEC has issued Instruction of even no. dated 9-10-2017 (Copy available on CBEC website and enclosed herewith) emphasizing that both the Centre and States should take a uniform stand in GST related petitions before the High Court(s) so as to obviate any contradictory orders or judgments. The said Instruction should also be scrupulously followed; h. Filing of Additional Affidavits pursuant to GST Council decisions and the respective Notifications - GST Council in its recent meetings have taken a number of decisions so as to rationalize and simplify the procedure and rate under the GST Law and Rules. Subsequently, the respective Policy Wings issues the Notification to give effect to the decisions. The field formations should continuously follow the changes in the law and procedure and file additional affidavits in the related petitions pending in High Court(s), if required. i. Filing of SLP in the Hon ble Supreme Court against Orders of Hon ble High Court(s) staying collection of Tax under GST - CBEC has issued Instruction F. No. 275/11/2017-CX.8A, dated 18-9-2017 (copy available on CBEC website and enclosed herewith) directing the field formations to send a self-contained proposal against interim or final orders of High Court(s) where the levy of GST has been questioned or stayed. The field formations should constantly monitor court proceedings to keep a watch against any such order in the High Court(s). 4. It is once again stated that the jurisdictional Principal Chief Commissioner/Chief Commissioner/Principal Commissioner/Commissioner should take all necessary measures to efficaciously defend all GST related petitions, in High Court(s) under whose jurisdiction they respectively fall. 5. Commissioner (Commercial Taxes) of the States are requested not to file replies to Writ Petitions/PILs pending before Hon ble High Courts pertaining to GST without consulting the authorized Principal Commissioner/ Commissioner of CBEC. Yours sincerely (S.R. Meena) Under secretary to the Govt. of India