JUDGMENT :

1. Heard Sri Dhruv Agarwal, learned Senior Advocate assisted by Pooja Talwar, learned counsel for the petitioner, Sri S.P. Singh, learned Additional Solicitor General of India assisted by Sri Sanjay Kumar Om, learned Central Government Standing Counsel for the respondent No.1 and Sri M.C. Chaturvedi, learned Additional Advocate General assisted by Sri B.P. Singh Kachhwah, learned Standing Counsel for the respondent Nos. 2 to 5.

2. This writ petition has been filed praying for the following reliefs:

“(a) issue a writ of declaration declaring Section 7 read with Schedule II of the Central Goods and Service Tax Act, 2017 in so far as it includes the transaction of sale within the scope of supply and levy tax on such sales as ultra vires the Constitution, null and void;

(b) issue a writ of declaration declaring Section 7 read with Schedule II of the U.P. Goods and Service Tax Act, 2017 in so far as it includes the transaction of sale within the scope of supply and levy tax on such sales as ultra vires the Constitution, null and void;

(c) issue a writ, order or direction in the nature of Mandamus directing the respondent authorities not to take any coercive action against the petitioner in view of the impugned order dated 07.02.2022 passed by the respondent no.4;

(d) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 07.02.2022 passed by the respondent No.4 (Annexure nos. 29);

(e) issue a writ, order or direction in the nature of mandamus to waive off the mandatory 10% deposit for filing an Appeal under Section 107 of U.P. GST Act, 2017 by the petitioner against the order dated 07.02.2022; and

(f) Award the costs of the petition to the petitioner.”

SUBMISSIONS :-

3. Sri Dhruv Agarwal, learned Senior Advocate submits as under :-

(i) Article 246-A does not confer power to impose tax on sale of goods. Therefore, enactment of section 7 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act') and the U.P. Goods and Services Tax Act, 2017 (hereinafter referred to as 'the UPGST Act'), lacks legislative competence.

(ii) The word 'supply' does not mean sale. Therefore, sale could not fall within the meaning of the word 'supply'. Reliance is placed upon judgment of Hon'ble Supreme Court in the case of Southern Petrochemical Industries Co. Ltd. vs. Electricity Inspector & ETIO, (2007) 5 SCC 447 (Para-50) and Karnataka Power Transmission Corporation vs. Ashok Iron Works (P) Ltd. (2009) 3 SCC 240 (Para-28).

(iii) The words 'tax on the sale or purchase on goods' has been defined in Article 366(29A) and Entry 54, List-II of the VIIth Schedule of the Constitution of India provides for tax on sale of only petroleum crude, high speed diesel, motor spirit, natural gas, aviation turbine fuel and alcoholic liquor for human consumption. Therefore, by implication, no law can be legislated which may levy tax on sale of goods inasmuch as amended Entry 54 has narrowed down the field of legislation limited to petroleum crude etc. as aforementioned.

(iv) Opportunity of hearing as provided under Section 75(4) of the CGST/ UPGST Act has not been afforded to the petitioner.

(v) All relied upon documents have not been provided to the petitioner and thus, the assessment order suffers from breach of principles of natural justice.

4. Learned Additional Solicitor General and the learned Additional Advocate General support the impugned order and submit that the provisions of Section 7 of the CGST Act/ UPGST Act are valid and not ultra vires.

5. Sri M.C. Chaturvedi, learned Additional Advocate General has further submitted that challenge to the constitutional validity of a statutory provision can be entertained only if the petitioner is able to show, firstly, that there is lack of legislative competence to enact the impugned statutory provision and secondly, impugned provision infringes any