TMI Blog2019 (3) TMI 1822X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 8596 8597 of 2019, are filed to declare the provisions of impugned clause (ii) to proviso to Section 54(3) of the CGST Act, 2017, as ultra vires the Constitution of India, violative of the fundamental rights guaranteed by the Constitution under Article 14, 19(1)(g) of the Constitution of India. 2. WP Nos. 8602 8603 of 2019, are filed to declare the provisions of impugned Rule 89(5) of the CGST Rules, 2017, as ultra vires Article 14 of the Constitution as also ultra vires Section 54 of the CGST Act, 2017 in so far as it excludes the component of credit of input services from the definition of Net ITC in the formula prescribed for claiming refund of unutilized credit in case of inverted duty structure. 3. WP Nos. 8605 8608 of 2019, are filed for issuance of a mandamus, directing 3rd respondent, herein to process and allow refunds in accordance with law by factoring input services in the computation of Net ITC for the purpose of formulae prescribed in Rule 89(5) of the TNGST Rules. 4. Mrs. Hema Muralikrishnan, Learned Central Government Standing Counsel takes notice on behalf of respondents 1 and 2. Mr. Md. Shafiq, Learned Special Government Pleader (Taxes) takes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. (iii) In Mahant Moti Das v. S.P. Sahi, the Special Officer In Charge of Hindu Religious Trust Ors. reported in AIR 1959 SC 942, the Hon ble Supreme Court, held as follows : The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court reiterated the legal position thus : .. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. (vi) In Pathumma and Others v. State of Kerala reported in AIR 1978 SC 771 = 1978 SCR (2) 537, a Constitutional Bench of the Hon ble Supreme Court held as follows : It is obvious that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognised that there is always a presumption in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d whatever a Court may think of it. (See State of Bombay v. F.N. Balsara [AIR 1951 SC 318]) (x) In Government of Andhra Pradesh Ors. v. Smt. P. Laxmi Devi reported in 2008 (4) SCC 720, the Hon ble Supreme Court has considered few decisions, on the presumption in favour of the constitutionality, as follows : 58. The U.S. Supreme Court enunciated the principle that there is a presumption in favour of the constitutionality of Statute, and the burden is always upon the person who attacks it to show that there has been a clear transgression of a constitutional provision. This view was adopted by the Constitution Bench of this Court in Charanjit Lal Chowdhury v. Union of India and others [AIR 1951 SC 41 (para 10)], which observed : Prima facie, the argument appears to be a plausible one, but it requires a careful examination, and while examining it, two principles have to be borne in mind : (1) that a law may be constitutional even through it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (2) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court it violates one or more of the principles of liberty, of the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution (emphasis supplied) 60. Similarly in Union of India v. Elphinstone Spinning and Weaving Co. Ltd., and another, AIR 2001 SC 724 (vide para 9) a Constitution Bench of this Court observed : There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will Shell Company of Australia v. Federal Commissioner of Taxation, 1931 AC 275 (Privy Council). The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded his fundamental rights then the State must justify that the law is saved. It is also a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its correct perspective, we have to bear in mind certain fundamental principles as afore-recorded. There is presumption of constitutionality in favour of legislation. The Legislature has the power to carve out a classification which is based upon intelligible differentia and has rational nexus to the object of the Act. The burden to prove that the enacted law offends any of the Articles under Part III of the Constitution is on the one who questions the constitutionality and shows that despite such presumption in favour of the legislation, it is unfair, unjust and unreasonable. 7. In view of the above decisions, we are not inclined to grant stay. Hence, WMP Nos. 9116 9118 of 2019 in WP Nos. 8602 8603 of 2019, are dismissed. 8. Further, in WMP Nos. 9121 9123 of 2019 in WP Nos. 8605 8608 of 2019, writ petitioner has sought for interim directions to the 3rd respondent to be taken on record the petitioner s claim for refund of unutilized credit, as and when filed, arising under Section 54(3) of the TNGST Act by including input service within the meaning of the term Net ITC, pending disposal of the writ petition. 9. Interim direction as prayed for if granted would amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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