Page 81 - GSTL_7th May 2020_Vol 36_Part 1

2020 ] NELCO LTD. v. UNION OF INDIA 39
33. The reason for alluding to the legislative backdrop and the lan-
guage of Section 164 is because each disputes relating to limitation of rule-
making power will have to be resolved with reference to the language of each
provision. The doctrine of ultra vires should not be uniformly applied without
examining the terminology of the concerned statute.
34. Turning now to the decisions cited by the Petitioner. The rule-
making power which arose for consideration of the Supreme Court in the Central
Sales Tax Act in the case of K.I. Abraham was Section 8(4) and Section 13. The Pe-
titioner has drawn comparison to Section 13(3) of the Central Sales Tax Act with
Section 164 of the CGST Act. Relevant provisions are reproduced [***] in para 3
of the judgment, as under :
3. Section 8 of the Act, it stood on the material date, was to the following
effect :
“8. (1) Every dealer, who in the course of inter-State trade or com-
merce -
(a) sells to the Government any goods; or
(b) sells to a registered dealer other than the Government goods
of the description referred to in sub-section (3);
Shall be liable to pay tax under this Act, which shall be one per cent. of his
turnover.
(2) The tax payable by any dealer on his turnover in so far as the
turnover or any part thereof relates to the sale of goods in the course of in-
ter-State trade or commerce not falling within sub-section (1) -
(a) in the case of declared goods, shall be calculated at the rate
applicable to the sale or purchase of such goods inside the ap-
propriate State; and
(b) in the case of goods other than declared goods, shall be calcu-
lated at the rate of seven per cent. or at the rate applicable to
the sale or purchase of such goods inside the appropriate
State, whichever is higher :
and for the purpose of making any such calculation any such dealer shall be
deemed to be a dealer liable to pay tax under the sales tax law of the ap-
propriate State, notwithstanding that the, in fact, may not be so liable under
that law.
* * *
(4) The provisions of sub-suction (1) shall not apply to any sale in
the course of inter-State trade or commerce unless the dealer selling the
goods furnished to the prescribed authority in the prescribed manner -
(a) a declaration duly filled and signed by the registered dealer to
whom the goods are sold containing the prescribed particulars
in a prescribed form obtained from the prescribed authority;
or
(b) if the goods are sold to the Government, not being a registered
dealer, a certificate in the prescribed form duly filled and
signed by a duly authorised officer of the Government.”
Section 13 states :
“(1) The Central Government may, by notification in the Official Ga-
zette, make rules providing for -
GST LAW TIMES  7th May 2020  81