Page 97 - GSTL_6th August 2020_Vol 39_Part 1

2020 ] MAHAVIR ENTERPRISE v. ASSISTANT COMMISSIONER OF STATE TAX 23
ceeding against the person against whom the show cause notices have been
issued. Abstinence from interference at the stage of issuance of show cause
notice in order to relegate the parties to the proceedings before the authori-
ties concerned is the normal rule. However, the said rule is not without ex-
ceptions. Where a show-cause notice is issued either without jurisdiction or
in an abuse of process of law, certainly in that case, the writ court would
not hesitate to interfere even at the stage of issuance of show cause notice.
The interference at the show cause notice stage should be rare and not in a
routine manner. Mere assertion by the writ petitioner that notice was with-
out jurisdiction and/or abuse of process of law would not suffice. It should
be prima facie established to be so. Where factual adjudication would be
necessary, interference is ruled out.”
24. When we invited the attention of Mr. Poddar to Rule 142 of the
Rules, which provides that the proper officer shall serve, along with the notice
under Section of the Act, a summary thereof electronically in Form GST DRC-01,
the quick reply was that Rule 142(1)(a) is ultra vires as a result of excessive dele-
gation. Rule 142 is specifically with respect to “notice and order for demand of
amounts payable under the Act”. We find no merit in the contention of Mr. Pod-
dar that Rule 142(1)(a) is invalid in any manner.
25. A rule under delegated legislation can be held to be ultra vires the
statutory provisions of the Act if it is shown :
(i) that it is beyond the scope of or in excess of the rule-making power
of the delegate conferred under the Act, or
(ii) that it is in conflict with or repugnant to any enactment in the Act.
26. The question whether any particular legislation suffers from exces-
sive delegation has to be decided having regard to the subject matter, the
scheme, the provisions of the Statutes including its preamble and the facts and
circumstances in the background of which the Statute is enacted. (See Registrar,
Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350 and State of Nagaland v. Ra-
tan Singh, AIR 1967 SC 212). It is also well settled that in considering the vires of
subordinate legislation one should start with the presumption that it is intra vires
and if it is open to two constructions, one of which would make it valid and oth-
er invalid, the Courts must adopt that construction which makes it valid and the
legislation can also be read down to avoid its being declared ultra vires [See St.
Johns Teachers Training Institute v. Regional Director, National Council for Teacher
Education reported in AIR 2003 SC 1522].
27. In the case of Ajay Canu v. Union of India, AIR 1988 SC 2027, the Su-
preme Court held that it was well established proposition of law that where a
specific power is conferred without prejudice to the generality of the power al-
ready specified, the particular power is only illustrative and it did not in any way
restrict the general power.
28. We have already quoted Section 164 of the Act which provides for
the power to make rules. It may be noted that Section 164 of the Act confers
power on the Central Government to frame the rules. Under Section 164 of the
Act, the Central Government has the power to make rules generally to carry out
all or any of the purposes of the Act.
29. In our opinion, Rule 142(1)(a) of the Rules, 2017 is valid and is no
manner conflict with any of the provisions of the Act.
30. The challenge to the legality and validity of the show cause should
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