TMI Blog2022 (5) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... - HELD THAT:- It appears that the Appellate Authority took the view that the Papad are known in the market as fryums and not Papad . The observations or the view taken by the Appellate Authority for Advance Ruling, as above, will have some bearing on this litigation. There is a further challenge to the constitutional validity of Section 103(1)(b) of the GST Act on the ground that the same is manifestly arbitrary and violative of Articles 14 and 19(1)(g) respectively of the Constitution - Let Notice be issued to the respondents, returnable on 15.06.2022. - R/SPECIAL CIVIL APPLICATION NO. 7114 of 2022 - - - Dated:- 13-4-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE Appearance: Uc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In any case this Hon ble Court may be pleased to hold and declare that initiation of proceedings against the Petitioners under Section 74 of the GST Acts is wholly without jurisdiction, arbitrary and illegal; F. Pending notice, admission and final hearing of this petition, this Hon ble Court may be pleased to stay further proceedings pursuant to impugned show cause notice dated 28.02.2022 along with Form GST DRC 01 dated 07.03.2022 (annexed at Annexure A); G. Ex parte interim relief in terms of prayer F may kindly be granted; H. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioners shall forever pray. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 50 read with section 74 of the CGST Act, 2017, read with Section 20 of IGST Act, 2017 and Section 50 read with Section 74 of the Gujarat GST Act, 2017. (iii) Penalty, equivalent to total GST (IGST+CGST+SGST) amount, should not be imposed on them under Section 74 of the CGST Act, 2017 read with Section 20 of IGST Act, 2017 and read with Section 74 of the Gujarat GST Act, 2017. 4. It is the aforesaid show cause notice which is the subject matter of challenge before us. Ordinarily, we would have declined to entertain this writ application at the stage of a show cause notice. However, there is something which Mr. Sheth, the learned counsel, has pointed out to us which has persuaded us to issue Notice and call upon the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a that term Papad has not been defined in GST Act, 2017, therefore, we take the recourse of trade/common parlance test so that Papad can be defined. In the matters of classification of goods under taxation statutes, all the judicial forums, including the Apex Court, have stressed upon the importance of the identity of the goods in common parlance and there is a plethora of case laws which hold that for classification of goods under statutes for taxation of commercial supplies thereof, the primary test is their identity in the market, or in other words, their common parlance in the market. The Hon'ble Supreme Court in the case of CCE, New Delhi v. Connaught Plaza Restaurant (P) Ltd. [2012 (286) E.L.T. 321 (S.C.)] has held that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such product. The user's understanding is a strong factor in determination of classification of the products . 40.3 We find that the appellant has submitted that the impugned product of different shapes and sizes PAPAD are known by different nomenclature in different parts of the country whereby more common nomenclature used is FRYUMS though FRYUMS is a registered brand name of TTK Healthcare Ltd. and not the name of any of product of PAPAD. Whereas the GAAR in his ruling has held that the different shapes and sizes like round, square, semi-circle, hollow circle with bars in between or square with bars in between intersecting each other or shape of any instrument, equipment, vehicle, aircraft, animal type Papad are known in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct in question are same except they are known by different name in general public i.e. as PAPAD and Fryums . 7. Thus, prima facie, it appears that the Appellate Authority took the view that the Papad are known in the market as fryums and not Papad . The observations or the view taken by the Appellate Authority for Advance Ruling, as above, will have some bearing on this litigation. 8. We also take notice of the fact that there is a further challenge to the constitutional validity of Section 103(1)(b) of the GST Act on the ground that the same is manifestly arbitrary and violative of Articles 14 and 19(1)(g) respectively of the Constitution. The constitutional validity of Section 103(1) (b) of the Act is already made a subject ..... X X X X Extracts X X X X X X X X Extracts X X X X
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