TMI Blog2019 (5) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-Profiteering Authority ( NAPA‟) (Respondent No.2) but also to the statutory provisions under which the said authority is exercising its powers i.e. Section 171 of the Central Goods and Services Tax Act, 2017 ( CGST Act‟) and Chapter XV of the CGST Rules and in particular Rules 126, 127 and 133 as being violative of Articles 14 and 19 of the Constitution of India. 4. The challenge is also to an impugned notice dated 4th February 2019 issued to the Petitioner No.1 by the Director General of Anti-Profiteering (Respondent No.3) proposing penal action against the Petitioners consequent upon the order dated 31st January 2019 of the NAPA. 5. This Court has heard the submissions of Mr. Mukul Rohatgi, learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers of the NAPA are to be nominated by the GST Council. In other words, there is no judicial member in the NAPA. It is further pointed out that under the CGST Rules there is no provision for constitution of an appellate authority to review the orders passed by the NAPA. 9. Another feature of the functioning of the NAPA is that under Rule 126 it is the NAPA which determines the methodology and procedure‟ for determining as to whether the reduction in the rate of tax on the supply of goods and services on benefit of Input Tax Credit ( ITC‟) has been passed on by the registered person to recipient by way of commensurate reduction in prices‟. In other words it is the NAPA who determines what can amount to profitee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 11. The Court is of the view that the Petitioners have made out a prima facie case and that at this stage the balance of convenience is also in their favour for an interim order being passed in the manner indicated hereafter. 12. Under the impugned order of the NAPA, the Petitioners are required to deposit an amount of ₹ 41,42,97,629.35 with the Central and State Consumer Welfare Funds ( CWFs‟) in a 50:50 ratio. It is accordingly directed that subject to the Petitioners depositing the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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