Page 87 - GSTL_27th August 2020_Vol 39_Part 4

2020 ] IN RE : APAR INDUSTRIES LTD. 413
es in Gujarat since the supply is taking place from Gujarat, the E-way Bill for
transportation will be issued from Gujarat and the tax assessment and audit will
also be in Gujarat. Thus, the correct classification of the product and the rate of
GST thereon will be decided by the Gujarat Tax Authorities.
5.16.2 In view of the above we find that the subject application is not
maintainable due to the non-fulfillment of the provisions of Section 95 of the
CGST Act inasmuch as it is the Gujarat factory, which is undertaking the supply
of goods and not the Maharashtra factory.
5.17 Finally, the applicant has submitted that this authority should fol-
low the principles analogous to the provisions of the CPC, 1908 and therefore, if
a conclusion is reached that the Application is “not maintainable”, in such a case
the application should be transferred to the AAR having jurisdiction and compe-
tence to give verdict and in that event the fees paid may also be “appropriated”
to such new Authority. In the event this AAR decides to “return” the Application
with a direction to file it in State of Gujarat or any other State, then appropriate
Orders may be passed for “granting refund of fees”.
5.17.1 We do not agree with the applicant’s contention regarding trans-
fer the application in case of non-maintainability. We find that GST Act is a Spe-
cial Act and CPC is a General Act. For a general act to be made applicable in case
of a special act, there should be a provision for the same in the special act. We
find that no such provisions have been made in GST Act for making the provi-
sions of CPC applicable in the case of GST. Further, the legal maxim Generalia
Specialibus Non Derogant’’ i.e. General things do not derogate from special things
reinforces that Special Law always prevails over general law. In this regard we
rely upon the judgments of Hon’ble Supreme Court in the case of Anvar P.V. v.
P.K. Basheer as reported in 2017 (352) E.L.T. 416 (S.C.) and Pankajakshi v. Chandrika
as reported in 2017 (345) E.L.T. 438 (S.C.).
5.17.2 We further find that Hon’ble Madras High Court, in the case of
India Pistons Limited v. Assistant Collector of Central Excise, Madras and Others as
reported in 1987 (27) E.L.T. 651 (Mad.) has held that Tribunal has no power to
transfer a case. Similarly, the Hon’ble Gujarat High Court in the case of Commis-
sioner of Customs (Preventive) v. Palvi Power Tech Sales Pvt. Ltd. as reported in 2014
(299) E.L.T. 180 (Guj.) has also held that the Tribunal has no power of transfer,
the appeal cannot be transferred.
5.18 This authority is supposed to function within the parameters of
the GST Act and Rules and we find that there are no specific provisions under
the GST Act, to transfer such application proceeding to the concerned State and
there are no provisions for refund of application fees paid along with applica-
tion. Further, we also draw from the case laws cited in para 5.19.1 above, that this
authority has no power to transfer the subject application. As per the provisions
of law and principal of natural justice, this application has been entertained and
reasonable opportunity of being heard has also been given to the applicant. We
have heard the views of applicant but found the same not acceptable. Applicant
may file such application before the concerned jurisdictional advance ruling au-
thority.
5.19 In view of above, this authority has no jurisdiction to pass ruling
on such matters pertaining to supply of goods or services or both which are be-
ing undertaken outside Maharashtra State by a different and distinct entity. We
find no reason to entertain this application. Hence, without going into the merits

GST LAW TIMES  27th August 2020  87