TMI Blog2021 (2) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit. The counsel for the petitioner replies in the negative. We have next enquired from the counsel for the respondent no.2 GST Council, whether she is in a position to argue the petition today itself. She replies in the affirmative. The counsel for the petitioner however states that in the prayer paragraph of the petition, a inadvertent mistake has occurred and which requires amendment/correction. It is stated that challenge is being made to the minutes of the Sixteenth meeting of the GST Council also and which remained to be made. The counsel for the respondents, on enquiry fairly states that she is not taking any technical pleas and the mistake may be ignored. We have thus proceeded to hear the counsels. 5. Section 10(1) of the Act, notwithstanding anything to the contrary contained in the Act, provides that a registered person whose aggregate turnover in the preceding financial year did not exceed ₹ 50,00,000/- may opt to pay, in lieu of the tax payable by him under Section 9(1) of the Act, an amount of tax calculated at such rate as may be prescribed but not exceeding the maximum laid down in the said provision. The first proviso to Section 10(1) of the Act empow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, the counsel for the petitioner contends that the reason which prevailed for excluding ice cream was that there is no Goods and Services Tax (GST) on milk, being a large constituent of ice cream and if small manufacturers of ice cream were to be given benefit of Section 10(1) of the Act, there would be large scale loss of revenue. 11. 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. 12. 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, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive of Article 14. 14. In this respect we may record the contention of the counsel for the respondents, that besides pan masala and tobacco, aerated water has also been excluded from the benefit of Section 10(1) of the CGST Act. 15. Else 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 Kashmir Vs. Trikuta Roller Flowers Mill (P) Ltd. (2018) 11 SCC 260 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. Vs. Delhi Administration (2001) 3 SCC 635. 16. The counsel for the respondents also in this context has referred to Rai Ram Krishna Vs. State of Bihar AIR 1963 SC 1667, Union of India Vs. Parmeswaran Match Works (1975) 1 SCC 305, Express Hotels Pvt. Ltd. Vs. State of Gujarat (1989) 3 SCC 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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