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TMI Blog2023 (11) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... law and facts are involved in the above writ appeals, we dispose of the same together by a common judgment. 2. The issue involved is with respect to the entitlement of the purchasing dealer to take credit of input tax levied on the goods he purchased from the supplying dealer under section 16 of the Central Goods and Services Tax Act (for short, 'the CGST Act'). Incidentally, the provisions of Section 16(2)(c) of the CGST Act and Rule 36(4) of the Central Goods and Services Tax Rules (for short, 'the CGST Rules') are challenged as unconstitutional. 3. The appellant in WA No. 1853/2023 is the petitioner in WP(C) No. 31184/2023, and the appellant in WA No. 1857/2023 is the petitioner in WP(C) No. 31165/2023. The former is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Sales Tax and Others [(1992) 3 SCC 624]. The benefit of an input tax credit can be availed by a purchasing dealer who sells or manufactures goods using raw materials on which tax has been paid only on satisfaction of the conditions for such availment enumerated in the statute. Section 16 of the CGST Act deals with eligibility and conditions for taking input tax credit. It reads as follows: "16. Eligibility and conditions for taking input tax credit.- (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (d) he has furnished the return under section 39: Provided that where the goods against an invoice are received in lots or instalments, the registered person shall be entitled to take credit upon receipt of the last lot or instalment: Provided further that where a recipient fails to pay to the supplier of goods or services or both, other than the supplies on which tax is payable on reverse charge basis, the amount towards the value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be paid by him along with interest payable under section 50, in such manner as may be prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder for the assessment of integrated tax on imports; (e) an Input Service Distributor invoice or Input Service Distributor credit note or any document issued by an Input Service Distributor in accordance with the provisions of sub-rule (1) of rule 54. (2) Input tax credit shall be availed by a registered person only if all the applicable particulars as specified in the provisions of Chapter VI are contained in the said document, and the relevant information, as contained in the said document, is furnished in FORM GSTR-2 by such person; Provided that if the said document does not contain all the specified particulars but contains the details of the amount of tax charged, description of goods or services, total value of supply of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants were issued a show cause notice under section 73(1) of the CGST/SGST Act. The appellants were called for a personal hearing. They did not appear for personal hearing either. As per section 155 of the CGST Act, the burden is on the dealer who claims the benefit of input tax credit to prove that he is eligible for such benefit. The appellants did not discharge the said burden. They failed to produce any evidence to prove that they are entitled to the benefit of input tax credit. That apart, the appellants rushed to the writ court without exhausting the alternative appellate remedy. 9. The appellants also challenged the constitutional validity of Section 16(2)(c) of the CGST Act and Rule 36(4) of the CGST Rules. It is contended that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is up to the purchasing dealer to avail of the said benefit/concession following those conditions. The prescription of the conditions cannot be considered discriminatory to contravene Article 14. So far as the second point urged by the appellants is concerned, it is settled that legislation or provision in a statute cannot be challenged only on the grounds of arbitrariness or unreasonableness. Manifest arbitrariness must be established to strike down a provision in the statute as violative of Article 14 of the Constitution. The test to determine manifest arbitrariness is whether the enactment is drastically unreasonable, capricious, irrational, or without adequate determining principle {See Shayara Bano v. Union of India [(2017) 9 SCC 1]}. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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