IMPORTANT POINT
Rule 36(4) of the CGST Rules is valid as it derives authority from Section 16 of the CGST Act, not Section 43A, which was never enforced.

JUDGMENT :

Vijay Bishnoi, C.J.

Heard Mr. V.K. Sharff, learned counsel appearing for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel, CGST appearing for the respondents.

2. This writ petition is filed on behalf of the petitioner, M/s High Tech Ecogreen Contractors LLP, for quashing and setting aside of the order dated 31.03.2023 passed by the respondent No.2, i.e. Additional Commissioner, CGST & Central Excise, Guwahati (hereinafter to be referred as the “Additional Commissioner”) in Order-in-Original No.09/Addl. Commr./GST/GHY/2022-2023, whereby the Additional Commissioner confirmed and ordered payment of interest of Rs.1,11,74,767/- for delayed payment of GST for the period from July, 2017 to March, 2021; confirmed demand of ITC amounting to Rs.1,38,39,950/- in respect of ineligible Input Tax Credit (ITC) availed in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017 and confirmed realisation of interest on the confirmed amount of Rs.1,38,39,950/- at the rates applicable in terms of Section 50 of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017 and imposed a penalty of Rs.1,38,39,950/- in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017 for wrong availment of ITC.

Vide order dated 31.03.2023, the respondent No.2, Additional Commissioner ordered as follows:

(i) Confirmed demand of GST amounting to Rs.39,47,122/- in respect of supply of goods and services for the month of May, 2020 in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017;

(ii) Confirmed and ordered payment of interest of Rs.99,273/- for delayed payment of GST for the month of May, 2020;

(iii) Ordered appropriation of the amount of Rs.39,47,122/- already paid by way of belated filing of GSTR-3B for the month of May, 2020 during the time of investigation;

(iv) Imposed a penalty of Rs.39,47,122/- in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017 for non-payment of GST for the month of May 2020;

(v) Confirmed and ordered payment of interest of Rs.1,11,74,767/- for delayed payment of GST for the period from July, 2017 to March, 2021;

(vi) Confirmed demand of GST amounting to Rs.70,12,366/- payable under RCM in terms of Section 74(9) of the CGST Act, 2017 and corresponding Section of Assam GST Act, 2017;

(vii) Ordered appropriation of the GST amount of Rs.70,12,364/-, interest amounting to Rs.5,02,452/- and penalty amounting to Rs. 10,51,854/- already paid by way of filing DRC-03;

(viii) Confirmed demand of ITC amounting to Rs.1,38,39,950/- in respect of ineligible Input Tax Credit (ITC) availed in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017;

(viii) Confirmed the proposal for realization of interest on the confirmed amount of Rs. 1,38,39,950/- at the rates applicable in terms of Section 50 of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017;

(ix) Imposed a penalty of Rs. 1,38,39,950/- in terms of Section 74(9) of the CGST Act, 2017 and the corresponding Section of Assam GST Act, 2017 for wrong availment of ITC.

The petitioner has also challenged the order dated 12.02.2024 passed by the respondent No.3, i.e. Commissioner (Appeals), CGST, Central Excise and Customs, Guwahati [hereinafter to be referred as the “Commissioner (Appeals)”] in Order-in-Appeal No.81/GHY(A)/COM/GSTP/GHY/2024, whereby the appeal preferred by the petitioner against the order dated 31.03.2023 has been dismissed being barred by limitation.

Simultaneously, the petitioner has also challenged the constitutional validity of Rule 36(4) of the Central Goods and Services Tax/Assam Goods and Services Tax Rules, 2017.

3. We have noticed that against the order dated 12.02.2024, the petitioner has a remedy of filing