TMI Blog2022 (6) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... enge in the case of J.K. PAPAD INDUSTRIES VERSUS UNION OF INDIA [ 2021 (11) TMI 155 - GUJARAT HIGH COURT ]. In the said writ application, a Co-ordinate Bench of this Court has issued Notice and the matter is to come up on 08.06.2022 for hearing. Let Notice be issued to the respondents, returnable on 15.06.2022. - R/Special Civil Application No. 7107 of 2022 - - - Dated:- 13-4-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA And HONOURABLE MS. JUSTICE NISHA M. THAKORE For the Appellant : Uchit N. Sheth ORDER ( PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA ) 1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs: A. This Hon'ble Court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It appears from the materials on record that the writ applicant No. 1 is a Partnership Firm engaged in the business of manufacture of unfried fryums of different shapes and sizes. It is the case of the writ applicants that bona fide, they believed that the product they are manufacturing is nothing but Papad i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 side to respond. 5. Mr. Sheth, has invited the attention of this Court to one order passed by the Gujarat Appellate Authority for Advance Ruling, Ahmedabad, in the case of one M/s. Piyush Jayantilal Dobaria, having its place of business at Rajkot. The Gujarat Appellate Authority for Advance Ruling was called u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, Classification-Common parlance test-It is extension of general principle of interpretation of statutes for deciphering mind of law maker-It is attempt to discover intention of legislature from language used by it, keeping in mind, that language is at best imperfect instrument for expression of actual human thoughts- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used is FRYU IMS 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 market as Fryums and not PAPAD ; that Papad is a distinct commodity and it cannot be equated with the Fryums. We have visited the website of M/s. TTK Foods (http://ttkfoods.com/products) and found that the company manufactures ready to fry extruded products (papads) and sells under the brand name Fryum's. Therefore, it can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 matter of challenge in the case of J. K. Papad Industries vs. Union of India, Special Civil Application No. 16172 of 2021. In the said writ application, a Co-ordinate Bench of this Court has issued Notice and the matter is to come up on 08.06.2022 for hearing. 9. Let Notice be issued to the respondents, returnable on 15.06.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
