Sonia Gokani, J.:— Draft amendment is permitted.
2. Petitioner is before this Court in a matter where the order in original was challenged by way of an appeal before the Joint Commissioner (Appeals), the order of which dated 28.01.2021 resulted against the petitioner. In absence of any constitution of the Tribunal, the petitioner is before this Court seeking toe challenge that order as also for the challenge of the provisions of section 140 of the CGST Act, 2017 in the following manner:—
“PRAYER
8. In view of the facts and circumstances stated above, it is most respectfully prayed that;
(a) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction, ordering or declaring the Explanation 3 read with Explanation 1 & 2 to Section 140 of the CGST Act, 2017 as contrary to existing law and the Repeal and Saving provision of section 142 and hence, ultra vires to the CGST Act, 2017 and Rules made thereunder.
(b) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction quashing Paragraph 5 of the impugned Circular dated 02.01.2019 bearing No. 87/06/2019-GST as arbitrary and contrary to existing law and Repeal and saving provision under Section 142 of the CGST Act, 2017.
(c) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ to quash and set aside the impugned order and to order or direction the Respondent no. 2 to allow the claim of refund of Cess of the Appellant along with the interest;
(d) That alternatively, this Hon'ble Court may be pleased to issue a Writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction that the Petitioner be allowed to migrate CENVAT Credit of Education Cess and Secondary and Higher Education Cess under Section 140(1) of the Central Goods and Services Tax Act, 2017 notwithstanding retrospective amendment by Central Goods and Services Tax (Amendment) Act, 2018; and
(3) And pass, such further order/orders for granting relief(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice.”
3. We have heard Mr. Mishra, learned advocate appearing for the petitioner. He relied on the order of this Court on issuance of notice in Special Civil Application No. 11061 of 2019 as also in other petitions being Special Civil Application No. 1897 of 2021 and allied matters.
4. Issue notice returnable on 08.12.2021.
5. Over and above the regular mode, direct service by way of Speed Post is also permitted.
6. Special Civil Application No. 16286 of 2020 and allied matters shall be tagged with the above matter.