Page 159 - GSTL_14th May 2020_Vol 36_Part 2

2020 ] IN RE : NATIONAL DAIRY DEVELOPMENT BOARD 261
with 90 per cent. or more participation by way of equity or control, to carry
out any function entrusted to a Municipality under article 243W of the Con-
stitution or to a Panchayat under article 243G of the Constitution.”
12.2 The appellant has submitted that it is a statutory body constituted
by an Act of Parliament, namely the ‘National Dairy Development Board Act,
1987’. It is the contention of the appellant that it is covered under clause (i) of the
definition of ‘Governmental Authority’ and the condition below clause (ii) that
such an authority/board/other body should have been set up or established
‘with 90 per cent. or more participation by way of equity or control, to carry out
any function entrusted to a municipality under Article 243W of the Constitution
or to a Panchayat under Article 243G of the Constitution’, is not applicable to
them. The decision of Hon’ble High Court of Patna in the case of Shapoorji Pa-
loonji & Company Pvt. Ltd. v. C.C., C. Ex. & S.T., Patna [2016 (42) S.T.R. 681 (Pat.)]
has been relied upon by the appellant to buttress this contention.
12.3 It is pertinent to note that Special Leave to Appeal (C) No. CC 7472
of 2017 has been filed by the department in the Hon’ble Supreme Court against
the aforesaid decision of Hon’ble High Court of Patna and Hon’ble Supreme
Court has issued notice in this case on 13-4-2017 [2017 (52) S.T.R. J203 (S.C.)].
Therefore, the aforesaid judgment of the Hon’ble High Court of Patna in the case
of Shapoorji Paloonji & Company Pvt. Ltd. is in jeopardy, in view of the judgment
of Hon’ble Supreme Court in the case of Union of India v. West Coast Paper Mills
Ltd. [2004 (164) E.L.T. 375 (S.C.)], wherein it has been held as under -
“14. Article 136 of the Constitution of India confers a special power upon
this Court in terms whereof an appeal shall lie against any order passed by
a Court or Tribunal. Once a Special Leave is granted and the appeal is ad-
mitted the correctness or otherwise of the judgment of the Tribunal be-
comes wide open. In such an appeal, the court is entitled to go into both
questions of fact as well as law. In such an event the correctness of the
judgment is in jeopardy.
… … …..
… … …..
38. In the aforementioned cases, this Court failed to take into considera-
tion that once an appeal is filed before this Court and the same is enter-
tained, the judgment of the High Court or the Tribunal is in jeopardy. The
subject matter of the lis unless determined by the last Court, cannot be said
to have attained finality. Grant of stay of operation of the judgment may
not be of much relevance once this Court grants special leave and decides
to hear the matter on merit.”
13.1 In the definition of “Governmental Authority” at clause (zf) of
Para 2 of the Notification No. 12/2017-Central Tax (Rate), there is a long line af-
ter the words “Governmental Authority” means an authority or a board or any
other body, which is applicable to both sub-clauses (i) and (ii). Further, had it
been the intention of the Legislature to make the conditions below clause (ii) ap-
plicable only to clause (ii) and not to clause (i), then such conditions could have
been written along with clause (ii) and there was no need to write such condi-
tions separately below clause (ii). It is therefore evident that the condition that an
authority/board/other body, to be qualified as ‘Governmental Authority’ should
have been set up or established ‘with 90 per cent. or more participation by way of
equity or control, to carry out any function entrusted to a municipality under
Article 243W of the Constitution or to a Panchayat under Article 243G of the
Constitution’, is applicable to both sub-clauses (i) and (ii).
GST LAW TIMES  14th May 2020  159