# M/S Torque Pharmaceuticals Pvt. Ltd v. U.O.I. & Ors

- **Citation:** (2021) 2 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-09
- **Case number:** Writ Tax No. 655 of 2018
- **Bench:** Surya Prakash Kesarwani, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-torque-pharmaceuticals-pvt-ltd-v-u-o-i-ors-46725
- **Pages:** 22

## Headnote

Tax Law-This batch of Writ are appealable
before the Appellate Tribunal u/s 112 of
the CGST ACT/U.P. GST Act-but Tribunal
u/s
109
CGST
Act
not
constitutedchallenge to impugned orders relates to
question of fact and Appellate Authority is
last
fact
finding
authority-mandamus
issued to specify by notification the State
bench at Prayagraj and-four area benches
at Ghaziabad, Lucknow, Varanasi and Agra
-as Appellate Tribunal of the Goods and
Services
Tax
Appellate
Tribunal-made
functional from 01.04.2021.

W.P disposed(E-7)

List of Cases cited:-

1.PIL Civil No.6800 of 2019 (Oudh Bar
Association through Secretary, & anr. Vs U.O.I.
through Secretary, Ministry of Finance & ors.)

## Text

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2 All. M/S Torque Pharmaceuticals Pvt. Ltd. Vs. U.O.I. & Ors.
141
condonation of delay within a period of two
weeks from the date of this order before the
trial court and partly allow the revision
with a cost to be paid by the appellant and
direction to the trial court to decide the
applications afresh in accordance with law.

27. With the aforesaid the impugned
order dated 07.01.2020 is hereby set-aside
and the revision is partly allowed with a cost
of Rs.20,000/- to be deposited by the
revisionist before the trial court within two
weeks of this order. The trial court is directed
to reconsider the applications afresh in
accordance with law and the observations
made here-in-above in this order. The cost
deposited by the revisionist shall be released
in favour of the opposite party and paid to the
account in the name of opposite party.
----------
(2021)02ILR A141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ Tax No. 655 of 2018
with other cases

M/S Torque Pharmaceuticals Pvt. Ltd.
 ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nishant Mishra, Sri Rahul Agarwal, Sri
Vipin Kumar Kushwaha

Counsel for the Respondents:
A.S.G.I., Sri Akhilesh Kumar Mishra, C.S.C.,
Sri Krishna Ji Shukla, Sri Om Prakash
Srivastava, Sri Ramesh Chandra Shukla.
Tax Law-This batch of Writ are appealable
before the Appellate Tribunal u/s 112 of
the CGST ACT/U.P. GST Act-but Tribunal
u/s
109
CGST
Act
not
constitutedchallenge to impugned orders relates to
question of fact and Appellate Authority is
last
fact
finding
authority-mandamus
issued to specify by notification the State
bench at Prayagraj and-four area benches
at Ghaziabad, Lucknow, Varanasi and Agra
-as Appellate Tribunal of the Goods and
Services
Tax
Appellate
Tribunal-made
functional from 01.04.2021.

W.P disposed(E-7)

List of Cases cited:-

1.PIL Civil No.6800 of 2019 (Oudh Bar
Association through Secretary, & anr. Vs U.O.I.
through Secretary, Ministry of Finance & ors.)

2. Special Appeal No.1481 of 2007 (M/S
Universal Insulator and Cereamics Ltd. Vs
Official Liquidator High Court Allahabad)

3. Vijendra Pal SC Singh Vs Senior Regional
Manager, Food Corporation of India, Lucknow &
anr., AIR 2002 (All) 206

4. Ashok Pandey Vs Allahabad High Court,
(2014) 3 All.LJ 507

5. U.P. Junior Doctors' Association Committee Vs
B. Sheetal Nandwani, (1990) 4 SCC 633

6. L.P. Misra Vs St. of U.P., (1998) 7 SCC 379

(Delivered by Hon'ble Surya Prakash Kesarwani, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard Sri Navin Sinha, learned
Senior Advocate assisted by Ms. Kalpana
Sinha, Sri Nishant Misra, Sri Vishwjit, Sri
Harish
Chandra
Dubey,
Sri
Suyash
Agarwal, Sri Atul Gupta, learned counsel
and
other
learned
counsel
for
the
petitioners, Sri Shashi Prakash, learned
Additional Solicitor General of India
142 INDIAN LAW REPORTS ALLAHABAD SERIES
assisted by Sri Krishna Agarwal, Sri K.J.
Shukla, Sri R.C. Tiwari, Sri Anant Kumar
Tiwari, learned counsel and other learned
counsel for the Indirect Taxes/Central
Government and Sri Manish Goel, learned
Additional Advocate General assisted by
Sri C.B. Tripathi, learned Special Counsel
appearing for the State-respondents.

2. With the consent of learned
counsels for the parties, Writ Tax No.655
of 2018 has been treated as the leading
writ petition and only the relief relating
to the constitution of the Goods and
Services
Tax
Appellate
Tribunal
(hereinafter
referred
to
as
''the
Tribunal') under the Central Goods and
Services Tax Act, 2017 (hereinafter
referred to as ''the CGST Act')/ U.P. Goods
and Services Tax Act, 2017 (hereinafter
referred to as ''the U.P. GST Act'), is being
decided and all other questions are left
open.

3. Reliefs sought in Writ Tax
No.655 of 2018, are reproduced below:

"A- Issue a writ, order or
direction in the nature of mandamus
commanding respondents No. 1 & 2 to
constitute 'Regional Bench' and 'State
Bench' for the State of U.P, at the seat of
jurisdictional High Court and also such
number of ''Area Benches' in the State of
U.P,
as
may
be
recommended
by
Respondent No. 6;

B- Issue a Writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
2.4.2018 & 7.2.2018 (Annexure-1 & 2)
passed by Respondents No. 4 & 5
respectively;

C- Issue a writ, order or
direction quashing the Circular dated
6.2.2017 issued by Respondent No. 2, to the
extent it directs that Rule 138 of UPGST
Rules under which Notification No.1014
dated 21.7.2017 was issued prescribing eway bill 01, gets automatically revived on
rescinding of Notification No.138 dated
30.1.2018;

In the Alternative

Issue a writ, order or directing
declaring that Notification No. 1014 dated
21.7.2017, as amended, is directory and
not mandatory, in so far it requires
carrying e-way bill 01 for inter-State
transaction covered by IGST Act, 2017;

D- Issue any other writ, order or
direction, which this Hon'ble Court may
deem fit in the facts and circumstances of
the case;

DI. Issue a writ, order or
direction the nature of certiorari calling for
and examining DO No. 20/GST dated 29th
May 2020 dated 29.5.2020 submitted by
Respondent No. 2 before Respondent No. 6
and also the approval of Respondent No. 6
in its 40th meeting held on 12th June, 2020,
in so far it relates to creation of State
Bench of Goods and Services Tax Appellate
Tribunal at Lucknow and quashing the
said DO No. 20/GST dated 29th May 2020
dated
29.5.2020
and
approval
of
Respondent No. 6l, as without authority of
law and contrary to Section 109 (6) of the
Central Goods &Services Tax Act, 2017;

E- Award costs of the petition to
the Petitioner.

E1. Issue a writ, order or
direction in the nature of mandamus
directing Respondent No.6 to restore the
decision taken in its 39th meeting held on
14th March' 2020 in respect of creation of
State Bench of Goods and Services Tax
Appellate Tribunal at Allahabad and 4
Area Benches at Ghaziabad, Lucknow,
Varanasi and Agra AND further issue a
writ, order or direction in the nature of
mandamus commanding Respondent No.1
2 All. M/S Torque Pharmaceuticals Pvt. Ltd. Vs. U.O.I. & Ors.
143
to forthwith issue necessary notification for
the same."

4. Briefly stated facts of the present
case are that the impugned orders passed in
this batch of writ petitions are appealable
before
the
Appellate
Tribunal
under
Section 112 of the CGST Act/ U.P. GST
Act but the petitioners have filed these writ
petitions for reason that the Tribunal under
Section 109 of the CGST Act has not been
constituted so far by the Government, i.e.
the Central Government, under Section 109
of the CGST Act. Since the challenge to the
impugned orders relates to questions of fact
and the Appellate Tribunal is the last fact
finding authority, therefore, we leave it
open for all the petitioners to challenge the
impugned orders before the Appellate
Tribunal under Section 112 of the CGST
Act/ U.P. GST Act as and when the State
Bench and Area Benches of the Appellate
Tribunal are constituted in the State of
Uttar Pradesh.

Relief being considered in this
bunch of writ petitions:-

5. Now we proceed to consider the
reliefs (A), (D1) and (E1) which at the cost
of repetition, are reproduced hereunder:

"A- Issue a writ, order or
direction in the nature of mandamus
commanding respondents No. 1 & 2 to
constitute 'Regional Bench' and 'State
Bench' for the State of U.P, at the seat of
jurisdictional High Court and also such
number of ''Area Benches' in the State of
U.P,
as
may
be
recommended
by
Respondent No. 6;

DI. Issue a writ, order or
direction the nature of certiorari calling for
and examining DO No. 20/GST dated 29th
May 2020 dated 29.5.2020 submitted by
Respondent No. 2 before Respondent No. 6
and also the approval of Respondent No. 6
in its 40th meeting held on 12th June, 2020,
in so far it relates to creation of State
Bench of Goods and Services Tax Appellate
Tribunal at Lucknow and quashing the said
DO No. 20/GST dated 29th May 2020
dated
29.5.2020
and
approval
of
Respondent No. 6l, as without authority of
law and contrary to Section 109 (6) of the
Central Goods &Services Tax Act, 2017;

E1. Issue a writ, order or
direction in the nature of mandamus
directing Respondent No.6 to restore the
decision taken in its 39th meeting held on
14th March' 2020 in respect of creation of
State Bench of Goods and Services Tax
Appellate Tribunal at Allahabad and 4
Area Benches at Ghaziabad, Lucknow,
Varanasi and Agra AND further issue a
writ, order or direction in the nature of
mandamus commanding Respondent No.1
to forthwith issue necessary notification for
the same."

6. We have heard learned counsels for
the parties at length. Arguments were heard
in the leading writ petition by this court on
17.04.2018,
13.02.2019,
28.02.2019,
03.07.2019,
19.07.2019,
18.01.2021,
20.01.2021 and 25.01.2021. High Court
Bar Association, Allahabad was also heard
on 03.07.2019 and 19.07.2019. The order
dated 19.07.2019 passed by this court, is
reproduced below:

"Heard Shri Nishant Mishra,
learned counsel for the petitioner, Shri
Gyan Prakash, learned Assistant Solicitor
General of India assisted by Shri K.J.
Shukla and Shri R.C. Shukla learned
counsel for the respondent nos.1 to 6, Shri
Vikas Chandra Tripathi, learned Chief
Standing Counsel assisted by Shri Nimai
Dass, learned Additional Chief Standing
144 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel and Shri B.P. Singh Kachhawah,
learned Standing Counsel, Shri C.B.
Tripathi, learned Special Counsel for the
State.

Shri Navin Sinha, learned Senior
Advocate assisted by Shri Rahul Agrawal,
Advocate and Sri Akhilesh Kumar Mishra,
Senior Vice President, High Court, Bar
Association Allahabad are also present to
assist the Court.

The status report along with an
affidavit has been filed by the State
Government today, which is taken on
record. The Counsel for the Central
Government has also placed a letter, which
is also taken on record.

Learned
Counsel
for
the
petitioner, Sri Nishant Mishra has drawn
the attention of this Court to the provisions
of Section 109 (6) of Central Goods &
Services Tax Act, 2017 which reads as
hereunder:-

"(6) The Government shall, by
notification, specify for each State or Union
territory except for the State of Jammu and
Kashmir, a Bench of the Appellate Tribunal
(hereafter in this Chapter, referred to as
?State Bench?) for exercising the powers of
the
Appellate
Tribunal
within
the
concerned State or Union territory:

Provided that for the State of
Jammu and Kashmir, the State Bench of the
Goods and Services Tax Appellate Tribunal
constituted under this Act shall be the State
Appellate Tribunal constituted under the
Jammu and Kashmir Goods and Services
Tax Act, 2017:

Provided
further
that
the
Government shall, on receipt of a request
from any State Government, constitute such
number of Area Benches in that State, as
may be recommended by the Council:

Provided
also
that
the
Government may, on receipt of a request
from any State, or on its own motion for a
Union territory, notify the Appellate
Tribunal in a State to act as the Appellate
Tribunal for any other State or Union
territory, as may be recommended by the
Council, subject to such terms and
conditions as may be prescribed."

From a bare reading of the
provision of the Act itself it is clear that it
is not in the domain of the State
Government to make a recommendation
for deciding the place of the State Bench
of the Tribunal. The role of the State is
confined to determine the place of area
benches.

Insofar as the determination of
location of the State Bench is concerned, it
remains in the domain of the Central
Government for which the matter is under
consideration
before
the
Central
Government.

Insofar as the judgement dated
31.05.2019 of the Lucknow Bench in PIL
(Civil) No.6800 of 2019 (Oudh Bar Asso.
High Court, Lko. Thru General Secretary
& Anr. vs. U.O.I. Thru Secy. Ministry of
Finance & Ors.) is concerned, it appears
that the aforesaid provisions have not been
considered at all, hence, prima facie the
judgement appears to be bereft with nonconsideration of the above facts. The
Central Government shall proceed in
accordance with Section 109 (6) of
C.G.S.T. Act, 2017.

List this matter on 19.08.2019.

A proposal has been made by the
High Court Bar Association, Allahabad
that as the principal seat is at Allahabad
having larger territorial jurisdiction and
there is a sufficient space available in the
premises of Board of Revenue/Police
Headquarter, Allahabad, which has been
currently vacated, the State Bench may be
housed in the said premises. The location
of the premises is practically in the
institutional area, centrally located having
2 All. M/S Torque Pharmaceuticals Pvt. Ltd. Vs. U.O.I. & Ors.
145
ample parking space and near Allahabad
High Court. Their suggestion is welcomed
by the members of the Bar.

Sri Gyan Prakash Srivastava,
learned Assistant Solicitor General of India
is granted three week's time to file status
report regarding decision taken by the
Central Government."

Relevant Provisions:

7. For the purposes of the present
controversy, the relevant provisions are
Article 279A of the Constitution of India,
Section 109 of the CGST Act and Section
109 of the U.P. GST Act, which are
reproduced below:

"Article
279A
of
the
Constitution of India:-

''''279A.Goods and Services Tax
Council (1) The President shall, within
sixty days from the date of commencement
of the Constitution (One Hundred and First
Amendment) Act, 2016, by order, constitute
a Council to be called the Goods and
Services Tax Council.

(2) The Goods and Services Tax
Council shall consist of the following
members, namely:--

(a)
the
Union
Finance
Minister........................ Chairperson;

(b) the Union Minister of State in
charge of Revenue or Finance.................
Member;

(c) the Minister in charge of
Finance or Taxation or any other Minister
nominated
by
each
State
Government....................Members.

(3) The Members of the Goods
and Services Tax Council referred to in
sub-clause (c) of clause (2) shall, as soon
as may be, choose one amongst themselves
to be the Vice-Chairperson of the Council
for such period as they may decide.

(4) The Goods and Services Tax
Council shall make recommendations to the
Union and the States on--

(a)
the
taxes,
cesses
and
surcharges levied by the Union, the States
and the local bodies which may be
subsumed in the goods and services tax;

(b) the goods and services that
may be subjected to, or exempted from the
goods and services tax;

(c) model Goods and Services
Tax
Laws,
principles
of
levy,
apportionment of Goods and Services Tax
levied on supplies in the course of interState trade or commerce under article 269A and the principles that govern the place
of supply;

(d) the threshold limit of turnover
below which goods and services may be
exempted from goods and services tax;

(e) the rates including floor rates
with bands of goods and services tax;

(f) any special rate or rates for a
specified
period,
to
raise
additional
resources during any natural calamity or
disaster;

(g) special provision with respect
to the States of Arunachal Pradesh, Assam,
Jammu and Kashmir, Manipur, Meghalaya,
Mizoram,
Nagaland,
Sikkim,
Tripura,
Himachal Pradesh and Uttarakhand; and

(h) any other matter relating to
the goods and services tax, as the Council
may decide.

(5) The Goods and Services Tax
Council shall recommend the date on
which the goods and services tax be levied
on petroleum crude, high speed diesel,
motor spirit (commonly known as petrol),
natural gas and aviation turbine fuel.

(6)
While
discharging
the
functions conferred by this article, the
Goods and Services Tax Council shall be
guided by the need for a harmonised
structure of goods and services tax and for
146 INDIAN LAW REPORTS ALLAHABAD SERIES
the development of a harmonised national
market for goods and services.

(7) One half of the total number
of Members of the Goods and Services Tax
Council shall constitute the quorum at its
meetings.

(8) The Goods and Services Tax
Council shall determine the procedure in
the performance of its functions.

(9) Every decision of the Goods
and Services Tax Council shall be taken at
a meeting, by a majority of not less than
three-fourths of the weighted votes of the
members
present
and
voting,
in
accordance with the following principles,
namely:--

(a) the vote of the Central
Government shall have a weightage of one
third of the total votes cast, and

(b) the votes of all the State
Governments taken together shall have a
weightage of two-thirds of the total votes
cast, in that meeting.

(10) No act or proceedings of the
Goods and Services Tax Council shall be
invalid merely by reason of--

(a) any vacancy in, or any defect
in, the constitution of the Council; or

(b) any defect in the appointment of
a person as a member of the Council; or

(c) any procedural irregularity of
the Council not affecting the merits of the
case.

(11) The Goods and Services Tax
Council shall establish a mechanism to
adjudicate any dispute-

(a) between the Government of
India and one or more States; or

(b) between the Government of
India and any State or States on one side and
one or more other States on the other side; or

(c) between two or more States,

arising
out
of
the
recommendations
of
the
Council
or
implementation thereof."

Section 109 of the
CGST Act:-

109.Constitution of
Appellate
Tribunal and Benches thereof.- (1) The
Government
shall,
on
the
recommendations of the Council, by
notification, constitute with effect from
such date as may be specified therein, an
Appellate Tribunal known as the Goods
and Services Tax Appellate Tribunal for
hearing appeals against the orders passed
by
the
Appellate
Authority
or
the
Revisional Authority.

(2) The powers of the Appellate
Tribunal shall be exercisable by the
National Bench and Benches thereof
(hereinafter in this Chapter referred to as
"Regional Benches"), State Bench and
Benches thereof (hereafter in this Chapter
referred to as "Area Benches").

(3) The National Bench of the
Appellate Tribunal shall be situated at New
Delhi which shall be presided over by the
President
and
shall
consist
of
one
Technical Member (Centre) and one
Technical Member (State).

(4) The Government shall, on the
recommendations of the Council, by
notification, constitute such number of
Regional Benches as may be required and
such Regional Benches shall consist of a
Judicial Member, one Technical Member
(Centre) and one Technical Member
(State).

(5) The National Bench or
Regional Benches of the Appellate Tribunal
shall have jurisdiction to hear appeals
against the orders passed by the Appellate
Authority or the Revisional Authority in the
cases where one of the issues involved
relates to the place of supply.

(6) The Government shall, by
notification, specify for each State or
Union territory, except for the State of
Jammu and Kashmir, a Bench of the
2 All. M/S Torque Pharmaceuticals Pvt. Ltd. Vs. U.O.I. & Ors.
147
Appellate Tribunal (hereafter in this
Chapter, referred to as "State Bench") for
exercising the powers of the Appellate
Tribunal within the concerned State or
Union territory:

Provided that for the State of
Jammu and Kashmir, the State Bench of the
Goods and Services Tax Appellate Tribunal
constituted under this Act shall be the State
Appellate Tribunal constituted under the
Jammu and Kashmir Goods and Services
Tax Act, 2017:

Provided
further
that
the
Government shall, on receipt of a request
from any State Government, constitute
such number of Area Benches in that
State, as may be recommended by the
Council:

Provided
also
that
the
Government may, on receipt of a request
from any State, or on its own motion for a
Union territory, notify the Appellate
Tribunal in a State to act as the Appellate
Tribunal for any other State or Union
territory, as may be recommended by the
Council, subject to such terms and
conditions as may be prescribed.

(7) The State Bench or Area
Benches shall have jurisdiction to hear
appeals against the orders passed by the
Appellate Authority or the Revisional
Authority in the cases involving matters
other than those referred to in sub-section
(5).

(8) The President and the State
President shall, by general or special order,
distribute the business or transfer cases
among Regional Benches or, as the case may
be, Area Benches in a State.

(9) Each State Bench and Area
Benches of the Appellate Tribunal shall
consist of a Judicial Member, one Technical
Member (Centre) and one Technical Member
(State) and the State Government may
designate the senior most Judicial Member in
a State as the State President.

(10) In the absence of a Member in
any Bench due to vacancy or otherwise, any
appeal may, with the approval of the
President or, as the case may be, the State
President, be heard by a Bench of two
Members:

Provided that any appeal where
the tax or input tax credit involved or the
difference in tax or input tax credit involved
or the amount of fine, fee or penalty
determined in any order appealed against,
does not exceed five lakh rupees and which
does not involve any question of law may,
with the approval of the President and
subject to such conditions as may be
prescribed on the recommendations of the
Council, be heard by a bench consisting of a
single member.

(11) If the Members of the National
Bench, Regional Benches, State Bench or
Area Benches differ in opinion on any point
or points, it shall be decided according to the
opinion of the majority, if there is a majority,
but if the Members are equally divided, they
shall state the point or points on which they
differ, and the case shall be referred by the
President or as the case may be, State
President for hearing on such point or points
to one or more of the other Members of the
National Bench, Regional Benches, State
Bench or Area Benches and such point or
points shall be decided according to the
opinion of the majority of Members who have
heard the case, including those who first
heard it.

(12)
The
Government,
in
consultation with the President may, for the
administrative convenience, transfer--

(a) any Judicial Member or a
Member Technical (State) from one Bench
to another Bench, whether National or
Regional; or
148 INDIAN LAW REPORTS ALLAHABAD SERIES

(b)
any
Member
Technical
(Centre) from one Bench to another Bench,
whether National, Regional, State or Area.

(13) The State Government, in
consultation with the State President may,
for the administrative convenience, transfer
a Judicial Member or a Member Technical
(State) from one Bench to another Bench
within the State.

(14) No act or proceedings of the
Appellate Tribunal shall be questioned or
shall be invalid merely on the ground of the
existence of any vacancy or defect in the
constitution of the Appellate Tribunal.

Section 109 of the U.P. GST
Act:-

109. Appellate Tribunal and
Benches thereof- (1) Subject to the
provisions of this Chapter, the Goods and
Services Tax Tribunal constituted under the
Central Goods and Services Tax Act, 2017
(12 of 2017) shall be the Appellate
Tribunal for hearing appeals against the
orders passed by the Appellate Authority or
the Revisional Authority under this Act.

(2)
The
constitution
and
jurisdiction of the State Bench and the
Area Benches located in the State shall be
in accordance with the provisions of
section 109 of the Central Goods and
Services Tax Act, 2017 (12 of 2017) or the
rules made thereunder."

Discussion and Findings:

8. Since the submission of learned
counsels for the parties in the present batch
of writ petitions is mainly confined to the
interpretation of Section 109(6) of the
CGST Act/ U.P. GST Act and facts of the
case, therefore, we now proceed to decide
the controversy.

9. Section 109(6) of the CGST Act
mandates that the Central Government
shall, by notification, specify for each State
or Union Territory except for the State of
Jammu and Kashmir, a State Bench of the
Appellate Tribunal for exercising the
powers of the Appellate Tribunal within the
concerned State or Union Territory. Under
the second provision to sub-Section (6) of
Section 109 of the CGST Act, area
benches in that State shall be constituted
by the Central Government in such number
as may be recommended by the council
on receipt of a request from the
concerned State Government. The third
proviso to sub-Section (6) of Section 109 of
the
CGST
Act
provides
that
the
Government may on receipt of a request
from any State, or on its own motion for a
Union Territory notify the Appellate
Tribunal in a State to act as the
Appellate Tribunal for any other State
or
Union
Territory,
as
may
be
recommended by the council, subject to
such terms and conditions as may be
prescribed. Section 109(2) of the U.P. GST
Act provides that the constitution and
jurisdiction of State Bench and the Area
Benches located in the State shall be in
accordance with the provisions of Section
109 of the CGST Act or the Rules made
thereunder. Thus, sub-section (6) of
Section 109 of the CGST Act clearly
mandates that "State Bench of the
Goods and Services Tax Appellate
Tribunal" shall be constituted and
notified by the Central Government but
the Area Benches in such number as may
be requested by the concerned State
Government, may be constituted by the
Central
Government
on
the
recommendation of the Council.

10. Vide DO Letter No.386/11-2-199(24)/19 - Institutional Finance, Tax and
Registration
Anubhag
-
2
dated
05.03.2019,
the
State
Government
2 All. M/S Torque Pharmaceuticals Pvt. Ltd. Vs. U.O.I. & Ors.
149
requested/ proposed to the Secretary of the
GST Council New Delhi for creation of
State Bench at Allahabad and 19 Area
Benches at different places in the State of
Uttar Pradesh. By this letter, the State
Government has revised its earlier proposal
dated 21.02.2019. The letter/ proposal of
the State Government dated 05.03.2019
filed as annexure-2 to the affidavit dated
15.10.2019 of respondent No.1 (Union of
India), is reproduced below:

"vkyksd flUgk]

v)Z'kk0i0la0&386@11&2&19&91⁄4241⁄2@19

vij eq[; lfpoA

laLFkkxr foRr] dj ,oa fuca/ku vuqHkkx&2

m0iz0 'kkluA

y[kuÅ% fnukad

05 ekpZ] 2019

fiz; egksn;]

mRrj izns'k jkT; esa th0,l0Vh0
vf/kfu;e ds varxZr izkfo/kkfur vihyh; fVaC;wuy
ds LVsV csap ,oa mudh ,fj;k csaUpst ds xBu ls
lacaf/kr iszf"kr izLrko fo"k;d d`i;k v/kksgLrk{kjh
ds
v)Z'kkldh;
i=
la[;k&334@11&2&19&91⁄4241⁄2@19] fnukad 21-022019 dk lanHkZ xzg.k djus dk d"V djsaA

mYys[kuh; gS fd ek0 mPp U;k;ky;]
bykgkckn }kjk loZJh VkWdZ QkekZL;wfVdy izk0fy0
cuke ;wfu;u vkWQ bf.M;k ,oa vU;] fjV ;kfpdk
la[;k&655@2018 ds ckn esa fu.kZ; fnukad 28-022019 esa ;g vfHker O;Dr fd;k x;k gS fd
loZJh enzkl ckj ,lksfl;s'ku cuke ;wfu;u vkQ
bf.M;k ,oa vU; 1⁄420141⁄2 10SCC ist ua0&1] ds
loksZPp U;k;ky; ds fu.kZ; ds vuqlkj fVaC;wuy
dk xBu ogha gksuk pkfg,] tgkW gkbZdksVZ dh
fizfUliy csap dk;Zjr gSA jkT; }kjk th0,l0Vh0
dkmafly dks iszf"kr izLrko esa fVaC;wuy dk xBu
y[kuÅ esa djrs gq;s 20 ,fj;k csapst dh laLrqfr
dh xbZ gS] ftls ek0 U;k;ky; }kjk mfpr ugha
ekuk x;k gSA 1⁄4U;k;ky; ds fu.kZ; dh izfr
layXu1⁄2

ek0 U;k;ky; }kjk fn;s x;s fu.kZ; ds
n`f"Vxr LVsV fVaC;wuy ds xBu gsrq iwoZ esa iszf"kr
izLrko dks la'kksf/kr djrs gq;s LVsV fVaC;wuy dk
xBu eq[;ky;] bykgkckn fu/kkZfjr fd;s tkus
rFkk bykgkckn ds vfrfjDr 'ks"k 19 ,fj;k csapst
dk xBu fuEuor~ fd;k tkuk izLrkfor gS%&

dz0
la0
Tkksu dk uke
LFkku
1.
Ukks,Mk
uks,Mk
2.
Xkft;kckn izFke
 Xkkft;kckn
3.
xkft;kckn f}rh;
xkft;kckn
4.
lgkjuiqj
lgkjuiqj
5.
esjB
esjB
6.
eqjknkckn
eqjknkckn
7.
cjsyh
cjsyh
8.
y[kuÅ izFke
y[kuÅ
9.
y[kuÅ f}rh;
y[kuÅ
10.
dkuiqj izFke
dkuiqj
11.
dkuiqj f}rh;
dkuiqj
12.
okjk.klh izFke
okjk.klh
13.
okjk.klh f}rh;
okjk.klh
14.
vyhx<+
vyhx<+
15.
vkxjk
vkxjk
16.
bVkok
bVkok
17.
QStkckn
QStkckn
18.
xksj[kiqj
xksj[kiqj
19.
>kWlh
>kWlh

d`i;k mijksDrkuqlkj mRrj izns'k jkT; esa
th0,l0Vh0 vf/kfu;e ds vUrxZr izkfo/kkfur
vihyh; fVaC;wuy ds LVsV csUp ,oa mudh ,fj;k
csUpst ds xBu ds laca/k esa vko';d dk;Zokgh
djkus dh dh d`ik djasA

lknjA

 Hkonh;

 g0vi0
150 INDIAN LAW REPORTS ALLAHABAD SERIES

1⁄4vkyksd flUgk1⁄2

Jh vt; Hkw"k.k ik.Ms;]
foRr lfpo ,oa
lfpo th0,l0Vh0 dkmafly]
Hkkjr ljdkj] ubZ fnYyhA"

11. The aforequoted proposal dated
05.03.2019 was discussed by the State
Government with the GST Council and,
therefore, the State Government decided to
propose only 4 Area Benches instead of 19
Area Benches. Consequently, proposal for
4 area benches, reiterating the State Bench
at Prayagraj, was sent by the State
Government to the GST Council vide DO
Letter
No.478/11-2-19-9-(24)/19
Institutional Finance, Tax and Registration
Anubhag-2, Government of U.P. dated
15.03.2019, which is reproduced below:

"vkyksd flUgk]

v)Z'kk0i0la0&478@11&2&19&91⁄4241⁄2@19

 vij eq[; lfpoA

laLFkkxr foRr] dj ,oa fuca/ku vuqHkkx&2

m0iz0 'kkluA

y[kuÅ% fnukad 15 ekpZ] 2019

fiz; egksn;]

mRrj
izns'k
jkT;
esa
th0,l0Vh0
vf/kfu;e ds varxZr izkfo/kkfur vihyh; fVaC;wuy ds
LVsV csap ,oa mudh ,fj;k csaUpst ds xBu ls lacaf/kr
iszf"kr izLrko fo"k;d d`i;k v/kksgLrk{kjh ds
v)Z'kkldh; i= la[;k&476@11&2&19&91⁄4241⁄2@19]
fnukad 15-03-2019 dk lanHkZ xzg.k djus dk d"V
djsaA

2& mYys[kuh; gS fd ek0 mPp U;k;ky;]
bykgkckn }kjk loZJh VkWdZ QkekZL;wfVdy izk0fy0
cuke ;wfu;u vkWQ bf.M;k ,oa vU;] fjV ;kfpdk
la[;k&655@2018 ds ckn esa ek0 mPp U;k;ky;]
bykgkckn }kjk ikfjr fu.kZ; fnukad 28-02-2019
v)Z'kkldh; i= la[;k&386@11&2&19&91⁄4241⁄2@19]
fnukad 05-03-2019 ls lfpo] th0,l0Vh0 dkmafly
dks mRrj izns'k jkT; esa LVsV fVaC;wuy ,oa ,fj;k
csapst ds xBu ds laca/k esa iszf"kr la'kksf/kr izLrko dk
laKku ysrs gq;s th0,l0Vh0 dkmafly lfpoky; }kjk
th0,l0Vh0 vihysV fVaC;wuy (GSTAT) ds xBu ds
izLrko th0,l0Vh0 dkmafly dh vkxkeh cSBdas ds
,ts.Mk esa 'kkfey djrs gq;s bZ&esy ds ek/;e ls bl
fo"k; ij izLrkfor ,ts.Mk fcUnq jkT;ksa ds dUQesZ'ku
gsrq bZ&esy ds ek/;e ls ldqZysV fd;k x;k gSA

3& rRdze esa th0,l0Vh0 dkmafly
lfpoky; ls nwjHkk"k ij gqbZ okrkZ esa th0,l0Vh0
dkmafly lfpoky; }kjk voxr djk;k x;k gS fd
mRrj izns'k jkT; }kjk 19 ,fj;k csUpst lfgr dqy
20 csUpst ds xBu dk izLrko izsf"kr fd;k x;k gS
tcfd egkjk"Va ,oa if'pe caxky }kjk ,fj;k csUpst
lfgr dqy rhu csUpst rFkk 'ks"k vU; jkT;ksa }kjk
dsoy ,d csUp ds xBu dk izLrko iszf"kr fd;k x;k
gSA vU; jkT;ksa }kjk iszf"kr izLrko ds n`f"Vxr mRrj
izns'k jkT; }kjk izLrkfor csUpst dh la[;k 1⁄4dqy 201⁄2
cgqr vf/kd gSA th0,l0Vh dkmafly lfpoky; }kjk
mRrj izns'k esa izLrkfor csUpst dh la[;k de djrs
gq;s vU; jkT;ksa ds le:i la'kksf/kr izLrko iszf"kr djus
dh vis{kk dh xbZ gSA

4& ;g Hkh mYys[kuh; gS fd LVsV
fVaC;wuy ,oa ,fj;k csUpst dk xBu lh0th0,l0Vh0
vf/kfu;e dh /kkjk&109 ds rgr iznRr 'kfDr;ksa dk
iz;ksx djrs gq;s th0,l0Vh0 dkmafly dh laLrqfr ij
dsUnz ljdkj }kjk fd;k tkuk gSA mRrj izns'k
,l0th0,l0Vh0 vf/kfu;e dh /kkjk 109 ds rgr
lh0th0,l0Vh0 vf/kfu;e dh /kkjk&109 ds rgr dsUnz
ljdkj }kjk lh0th0,l0Vh0 vf/kfu;e ds varxZr
xfBr fVaC;wuy dks vaxhdkj fd;k x;k gSA bl izdkj
LVsV fVaC;wuy ,oa ,fkj;k csUpst ds xBu dk nkf;Ro
dsUnz ljdkj dk gSA

5& mDr lexz rF;ksa ds n`f"Vxr mRrj
izns'k jkT; dh vksj ls th0,l0Vh0 vihysV fVaC;wuy
dh LVsV csUt ,oa ,fj;k csUpst ds xBu dk la'kksf/kr
izLrko izFke izLrj esa lanfHkZr v)Z'kkldh; i= fnukad
15-03-2019 }kjk iszf"kr fd;k tk pqdk gSA rRdze esa
fVaC;wuy dh LVsV csUp ,oa ,fj;k csUpst ds vf/k{ks= esa
vkus okys mRrj izns'k okf.kT; dj ds leLr tksu dk
fooj.k ,oa xBu dk izLrko fuEuor~ gS%&

dz0la0 LVsV csUp@,fj;k
csUp ds vf/k{ks= esa
lekfgr
okf.kT;
dj tksu ds uke
LVsV csUp@,fj;k csUp
gsrq izLrkfor LFkku
1
2
3
1
Okkf.kT; dj tksu
iz;kxjkt
,oa
QStkckn
iz;kxjkt 1⁄4LVsV csUp1⁄2
2
Okkf.kT; dj tksu
2 All. M/S Torque Pharmaceuticals Pvt. Ltd. Vs. U.O.I. & Ors.
151
xkft;kckn
izFke]
xkft;kckn&f}rh;]
uks,Mk]
esjB]
ljkguiqj
,oa
eqjknkckn
xkft;kckn 1⁄4,fj;k
csUp1⁄2
3
okf.kT; dj tksu
y[kuÅ&izFke]
y[kuÅ
f}rh;
rFkk
cjsyh
,oa
okf.kT; dj tksu
dkuiqj
&izFke]
dkuiqj f}rh;
y[kuÅ 1⁄4,fj;k csUp1⁄2
4
Okkf.kT; dj tksu
vkxjk]
vyhx<+]
bVkok ,oa >kWlh

vkxjk 1⁄4,fj;k csUp1⁄2
5
okf.kT; dj tksu
okjk.klh&f}rh;
rFkk xksj[kiqj
okjk.klh 1⁄4,fj;k csUp1⁄2

;fn Hkfo"; esa jkT; esa vkSj ,fj;k csapst dh
vko';drk gksxh rks rRle; izLrko iszf"kr fd;k
tk;sxkA d`i;k mijksDrkuqlkj mRrj izns'k jkT; eas
th0,l0Vh0 vf/kfu;e ds vUrxZr izkfo/kkfur vihyh;
fVaC;wuy ds LVsV csUp ,oa mudh ,fj;k csUpst ds
xBu ds laca/k esa vko';d dk;Zokgh djkus dh d`ik
djsaA

lknjA

Hkonh;

g0vi0

 1⁄4vkyksd flUgk1⁄2

Jh vt; Hkw"k.k ik.Ms;]

foRr lfpo ,oa

lfpo th0,l0Vh0 dkmafly]

Hkkjr ljdkj] ubZ fnYyhA"

12.

Thus,
initially,
the
State
Government vide letter dated 21.02.2019
addressed to the Secretary, GST Council,
New Delhi, proposed for creation of State
Bench at Lucknow and 20 Area Benches in
different districts of the State of Uttar
Pradesh. In supersession of the aforesaid
proposal, the State Government had sent a
fresh
proposal
dated
05.03.2019
for
constitution of the "State Bench" at
Allahabad and "Nineteen Area Benches" in
different
cities.
Since
GST Council
Secretariat apprised the U.P. State
Government that request for creation of
19 Area Benches is excessive, therefore,
the State Government, vide letter dated
15.03.2019, revised its earlier request dated
05.03.2019 of Nineteen Area Benches and
requested only for Four Area Benches in
districts namely Ghaziabad, Lucknow,
Agra and Varanasi and reiterated the
proposal for the State Bench at Allahabad.

13. The aforestated letter-proposal
dated 15.03.2019 was challenged in PIL
Civil No.6800 of 2019 (Oudh Bar
Association
through
Secretary,
and
another vs. Union of India through
Secretary, Ministry of Finance and
others), the same was decided by the
Lucknow Bench of this Court vide
judgment and order dated 31.05.2019.
Taking note of the provisions of Section
109 of the CGST Act, the Hon'ble Bench
opined that the seat where the Tribunal is to
be established, is an issue which is within
the domain of the executive in terms of
Section 109 of the CGST Act and is not
justiciable. The Bench observed that it was
not concerned with the issue on merits as to
where the Benches should be established
but only with the issue whether the earlier
proposal could have been reviewed and
thereafter proceeded to quash the amended
proposal dated 15.03.2019 observing, as
under:

"44. Thus there are two Seats of
the High Court of Judicature at Allahabad,
one at Lucknow and the other at
Allahabad, none of which is permanent.
152 INDIAN LAW REPORTS ALLAHABAD SERIES

49. Now the seat where the
Tribunal is to be established is an issue
which is within the domain of the Executive
in terms of Section 109 of CGST Act
ordinarily and is not justiciable in view of
the decision of the Supreme Court in the
case of Lalit Kumar (supra), wherein it was
held that "that the issue with regard to
setting up of permanent Bench and Circuit
Benches of the Tribunal is not to be the
subject matter of consideration by the
judicial forum unless facts of the case are
so appalling that judicial interference
would be called for." There were no
exceptional circumstances existing in the
case, so far as the proposal dated
21.02.2019 was concerned, which was not
even under challenge, therefore the same
did not fall for adjudication in Writ Petition
No. 655 (TAX) of 2018, on merits. As far
we are concerned, we are not concerned
with the issue on merits as to where the
Benches should be established but we are
only concerned with the issue whether the
earlier proposal could have been reviewed
on account of certain observations made
in an interim order and whether on which
count the revised proposal is sustainable as
a valid exercise of power. .......................

50. In the present case, the
legislation, namely, GST Act, 2017 has
been enacted and has come into force with
effect from 01.07.2017. Under the said
enactment, various authorities have to be
set up, namely, GST Council, and the GST
Council
was
authorised
to
make
recommendations to the Government for
constitution of the regional Benches and
State Benches.

51. In view of the above
discussion, the amended proposal dated
15.03.2019 sent by the Commissioner,
Commercial
Tax
is
quashed.
Consequently the earlier proposal dated
21.02.2019, which was a reasoned and
considered one, shall be acted upon and
GST
Benches
shall
be
constituted
accordingly, expeditiously, say within
three months'."

14. Thereafter, in its 35th meeting
held on 21.06.2019, vide Agenda Item
No.8, the GST Council has noted in para35.3 that "Sri Alok Sinha, ACS Uttar
Pradesh stated that although the State
Government had proposed for setting up
of a State Bench in Allahabad and 4 Area
Benches in Ghaziabad, Lucknow, Varanasi
and Agra, the same had been challenged
before the Hon'ble High Court Lucknow
Bench, the Hon'ble High Court has
quashed the instant proposal and ordered
for considering the earlier proposal of the
State
Government
recommending
constitution of one State Bench with 20
Area Benches. He informed that the State
Government was contemplating filing an
appeal in the Supreme Court and
requested that Government of India may
also file an appeal against the High
Court's order, as it was respondent No.1."
Therefore, the matter of constitution of
State Bench and Area Benches was
deferred. Consequently, in 35th meeting,
no decision was taken by the Council
regarding constitution of State Bench and
Area Benches in the State of Uttar Pradesh.
However, in 25 States and 5 Union
Territories, State Benches of the Appellate
Tribunal were constituted and notified by
Notification No.2744 dated 21.08.2019 and
published in the Gazette of India.

15. Thereafter, in its 37th meeting
held on 20.09.2019, the GST Council vide
Agenda Item No.18 observed that for the
State of Uttar Pradesh, Department of
Revenue would consider the records/ court
orders issued by the Hon'ble High Court
Benches of Allahabad and Lucknow taking
2 All. M/S Torque Pharmaceuticals Pvt. Ltd. Vs. U.O.I. & Ors.
153
a final view for the location of a State
Bench of the Tribunal in view of the
request made by the State of Uttar Pradesh.

16. Thus, even on quashing of the
afore-quoted
proposal
of
the
State
Government dated 15.03.2019 in PIL Civil
No.6800 of 2019, the proposal of the State
Government dated 05.03.2019, remained
with the Council for establishing State
Bench at Allahabad, which was neither
under challenge in the PIL Civil No.6800
of 2019 nor it was withdrawn by the State
Government.

17. Thereafter, the GST Council in
39th
Meeting
held
on
14.03.2020,
considered the issue of creation of State
Bench and Area Benches in State of Uttar
Pradesh vide Agenda Item No.6 and
approved the proposal for creating State
Bench of the Tribunal at Allahabad and
Four Area Benches at Ghazibad, Lucknow,
Varanasi and Agra, as under:

"Agenda Item 6: Creation of the
State and Area Benches of the Goods and
Services Tax Appellate Tribunal (GSTAT)
for the State of Uttar Pradesh

15. The Secretary introduced the
agenda and stated that in terms of Section
109 of the CGST Act, 2017: Goods and
Services Tax Appellate Tribunal (GSTAT)
were being constituted by the Government
on the recommendation of the GST
Council. The Appellate Tribunal having
National/Regional Benches at National
level and the State / Area Benches at State
level, to hear appeals against orders
passed by the Appellate Authority or by the
Revisional Authority (Enclosed in Agenda
circulated for reference).

15.1.