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Serial No. 01

Supplementary List

HIGH COURT OF MEGHALAYA

AT SHILLONG

WP(C) No. 245 of 2024

Date of Decision :02.06.2026

M/s Jorabat Shillong Expressway Limited

Through its authorized Representative

Umjarasi, Nongthymmai, Nongpoh,

Meghalaya-783102, Through its authorized representative

GSTIN: 17AACCJ3827H1ZL

… Petitioner(s)

Versus

1. Union of India

Through the Secretary,

Ministry of Finance, Department of Revenue,

North Block, Government of India,

New Delhi-110001.

2. State of Meghalaya

Through the Secretary,

Finance Department, Government of Meghalaya

Room No. 305, Additional Secretariat Building

Shillong-793001.

3. The Central Board of Indirect Taxes and Customs,

Ministry of Finance, Department of Revenue,

North Block, New Delhi.

4. The Additional Director,

Directorate General of Goods & Services Tax Intelligence,

Shillong Regional Unit, 3

rd

Floor, Old Arunachal Pradesh

Secretariat Building, Shillong-793001.

5. The Additional Commissioner of Central Goods and

Services Tax, Shillong Commissionerate

Crecens Building, M.G. Road, Shillong-793001

2026:MLHC:518-DB

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6. Goods and Service Tax Council,

Through its Chairperson,

5

th

Floor, Tower II, Jeevan Bharti Building Janpath Road,

Cannaught Place, New Delhi-110001.

7. The Secretary to the Government of Meghalaya,

Excise, Registration, Taxation and Stamps Department,

Shillong. … Respondent(s)

Coram:

Hon’ble Mr. Justice H.S. Thangkhiew, Judge.

Hon’ble Mr. Justice B. Bhattacharjee, Judge.

Appearance:

For the Petitioner(s) : Mr. S. Ghosh, Sr. Adv. with

Ms. A. Agarwal, Adv.

Ms. M. Wariach, Adv.

Mr. Philemon Nongbri, Adv.

Mr. E. Lalsangluaia, Adv.

For the Respondent(s) : Dr. N. Mozika, DSGI with

Ms. M. Myrchiang, Adv. (For R 1,3&5)

Mr. N. Syngkon, GA with

Mr. J.N. Rynjah, GA (For R 2&7)

i) Whether approved for reporting in Yes/No

Law journals etc:

ii) Whether approved for publication Yes/No

in press:

2026:MLHC:518-DB

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Per. H.S. Thangkhiew, Judge:

JUDGMENT AND ORDER

1. The brief background facts are that the Government of India

had entrusted the National Highways Authority of India (NHAI), a

government undertaking which monitors and controls the finance and

execution of projects, to augment the existing Highway of approximately

61.98 KM on the Jorabat-Shillong Section of the National Highway No. 40

in the State of Assam and Meghalaya by four laning through a Design,

Finance, Operate and Transfer pattern on BOT Annuity basis, and

accordingly on 08.12.2008, NHAI invited proposals from bidders.

Thereafter, a proposal of a Consortium which comprised of IL&FS

Transportation Networks Limited and Ramky Infrastructure, was accepted

and a Letter of Acceptance dated 20.05.2010, was issued to the said

Consortium. The Consortium then promoted and incorporated the petitioner

entity as a Limited Liability Company under the Companies Act, 1956,

which entered into a Concession Agreement dated 16.07.2010, for

execution of the Highway Project on BOT (Annuity) basis. Vide the

Concession Agreement, the petitioner was granted and authorized the right

to construct, operate, maintain and perform all other obligations for a period

of 20 years and as per the Concession Agreement, the petitioner was 2026:MLHC:518-DB

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entitled to annuity for discharging the obligations as per the Concession

Agreement after the commercial operation date.

2. In this context, it would be useful to note that Road or Highway

projects in India are classified as Built-Operate-Transfer (BOT) Toll, BOT-

Annuity, Engineering, Procurement and Construction (EPC), Hybrid

Annuity Model (HAM) and the Toll Operate and Transfer Model (TOT).

The BOT Annuity Model is a Public Private Partnership (PPP) Model for

infrastructure projects, especially Road Projects. Under the BOT Annuity

Model, a developer or concessionaire builds the Highway, operates it for a

specified duration and transfers it back to the Government. In this

arrangement, the Government starts annuity payment to the concessionaire

after the launch of the commercial operation of the project and the

concessionaire, does not receive any payment at the start of the project but

funds it.

3. Against the aforestated backdrop, on demand being made from

the petitioner for payment of GST on annuity received, the petitioner has

put a challenge to the Order in Original No. 01/Additional

Commissioner/CGST Shillong/2024-25 dated 18.04.2024 and DIN No.

2024047OUS00008858B4 (“Impugned Order”) issued by Respondent No.

5, under Section 74 of the Central Goods and Service Tax Act, 2017 2026:MLHC:518-DB

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(“CGST Act”) Meghalaya Goods and Services Tax Act, 2017 (“MGST”)

pursuant to the Show Cause Notice No. DGGI/INV/91/2021-0/o DD-

DGGI-RU-Shillong/941 (bearing DIN No. 202309DEE 3000000A006F)

dated 30.09.2023, for being issued without jurisdiction, as being illegal and

bad in law.

4. The petitioner has also assailed the demand of GST of Rs.

112,39,64,394/- (CGST + SGST) under Section 74 along with interest and

penalty under Section 50 and Section 74 of the CGST/MGST Act on the

annuity of Rs. 864,12,69,958/- received by the petitioner from the National

Highway Authority of India for the period July, 2017 to December, 2022.

This has been challenged on the ground that it is in contradiction to the

expressed exemption of annuity under Entry 23A under notification dated

28.06.2017 as amended vide notification 13.10.2017 and notification dated

29.06.2017 as amended by notification dated 09.11.2017 (exemption

notifications), issued by the respondents No. 1 and No. 2.

5. The constitutional validity of a circular being No. 150/06/2021-

GST dated 17.06.2021, issued by the respondent No. 3 as well the

recommendation of the respondent No. 6, in the 43

rd

GST Council meeting

held on 28.05.2021, whereby it was clarified that Entry 23A of the

exemption notification does not exempt GST on annuity paid for 2026:MLHC:518-DB

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construction of roads, which is the basis for issuance of the impugned Show

Cause Notice has also been assailed on the ground of being without

jurisdiction and therefore illegal.

6. And lastly, a challenge has also been made to notification No.

14/2017 dated 01.07.2017 read with corrigendum dated 29.07.2019 issued

by the respondent No. 1, to the extent of vesting the respondent No. 4 as

Central Tax Officer with the powers under the CGST Act as being ultra

vires Section 2(91) read with Sections 3 & 5 of CGST Act and circular No.

3/3/2017 dated 05.07.2017 issued by the respondent No. 3, to the extent of

investing the respondent No. 5 with the power of ‘Proper Officer’ to

exercise powers under Section 74 of the CGST Act as being ultra vires

Section 291. This it is alleged has rendered the impugned Show Cause

Notice as being without jurisdiction or authority of law. Hence, the petition.

7. Mr. S. Ghosh, learned Senior counsel assisted by Ms. A.

Agarwal learned counsel for the petitioner in his submissions has referred

to the Concession agreement, whereby the petitioner is entitled to annuity

for discharge of its obligations and submits that basically the respondent

authorities have acted without jurisdiction in issuing the impugned Order

in Original (OIO) dated 18.04.2024, which was issued pursuant to the Show

Cause Notice 30.09.2023. He submits that there has been a mis- 2026:MLHC:518-DB

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classification of services, violation of constitutional and statutory

provisions apart from dis-regard of the exemption notifications.

8. The petitioner company he submits, had entered into an

agreement in a BOT (Annuity) model, and as such being a concessionaire

is not entitled to collect tolls, a prerogative that is retained by the NHAI,

and in this model, the recovery of costs is made through half yearly

annuities. The scope of the project he submits, is the operation and

maintenance of the project Highway and includes all matters connected

with, or incidental to such operations, maintenance and provision of

services, facilities in accordance with the provisions of the agreement. The

learned Senior counsel has stressed that the agreement has not been

executed as a contract for construction of the project Highway, which in

ordinary commercial parlance, would constitute an EPC contract where no

such Concession Fee is payable by the contractor, but rather a contract to

construct, operate and maintain. As such he submits, unlike a construction

contract, which only comprises construction and maintenance, a

Concession Agreement, also includes operation which is a distinctive

feature. The learned Senior counsel in this regard has taken this Court to

the relevant articles in the Agreement on the points of scope of the project, 2026:MLHC:518-DB

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Concession Fee, the grant of concession and also operation and

maintenance.

9. The learned Senior counsel has further submitted that the

Concession Agreement format, is not similar or identical to a construction

contract model, and that one of the vital distinctions between the two is that

under the petitioner’s Concession Agreement, the entire project is

transferred through a detailed divestiture arrangement at the end of the

concession period, and for availing the concession, the petitioner is required

to pay a concession fee, whereas in the construction contract model, neither

the concept of divestiture, nor the concept of payment of concession fee

exist.

10. The disputes he submits, began when the GST Intelligence

authorities issued a show cause notice on 13.09.2023 on the allegation that

the petitioner failed to pay GST on annuity payments received for road

construction under the Jorabat-Shillong Expressway project. It has been

submitted that the authorities classified the activity as works contract

services (SAC 9954) taxable at 12-18% instead of exempt road access

services (SAC 9967) under Entry 23A and a tax demand of Rs. 130.57

Crores plus interest and penalty was raised, along with allegations of

suppression and mis-statement. A challenge to the show cause notice and a 2026:MLHC:518-DB

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GST Circular dated 17.06.2021 he submits, was then made before this

Court which was dismissed as being premature, and thereafter the matter

was taken up by way of an SLP before the Supreme Court, which by order

dated 05.02.2024, disposed the same by extending the time of reply, with

directions for proper consideration of the submissions of the petitioner by

the GST authorities.

11. Thereafter he submits, after hearing the petitioner, the

respondents passed an order on 18.04.2024, confirming a reduced demand

of Rs. 112.39 Crores with interest and penalty while holding that

construction services (SAC 9954) are taxable, even if paid via annuity and

the prayer for exemption under (SAC 9967) stood rejected. The present writ

petition he submits therefore, is for quashing of the show cause notice dated

30.09.2023 and final order dated 18.04.2024, as illegal and without

jurisdiction, and for declaration that annuity under BOT model is exempt.

Further he submits, the proceedings also suffer from a lack of authority

under the CGST Act, 2017 and the adjudicating authority failed to pass a

reasoned and speaking order despite directions of the Supreme Court. It is

also been contended that the respondents have erroneously classified the

petitioner’s services under (SAC 9954) i.e. work contract services, when

the same should have been classified under (SAC 9967) i.e. service by way 2026:MLHC:518-DB

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of taxes to a road/bridge, which is exempted under Entry 23A including

those under annuity-based models. This he submits is the core issue,

inasmuch as, the exemption covers the entire consideration including

deferred payments (annuities) and cannot be artificially spilt between

construction and access component and the impugned order therefore,

defeats the object and purpose of the exemption notification. Further he

submits the impugned Circular 17.06.2021, overrides and restricts a

statutory exemption notification which is impermissible in law and is in

contravention of Section 11(3) of the CGST Act, 2017, which is against the

settled principle that circulars cannot curtail or override statutory

notification and is therefore, ultra vires and liable to be struck down. The

learned Senior counsel has contended that the respondents failed to follow

the binding ratio of Karnataka High Court judgment in the case of M/s DPJ

Bidar-Chincholi (Annuity) Road Project Private Limited & Anr vs. Union

of India & Ors. (2024) 122 GSTR 48, wherein it has been clearly held that

the entire annuity including the construction component, is exempt and as

such the Circular dated 17.06.2021, is invalid in law.

12. There has been no suppression or intent to evade tax he submits,

and the invocation of Section 74 is wholly unjustified, as the petitioner

regularly filed GST returns and the issue herein, involves only the 2026:MLHC:518-DB

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interpretation of exemption and not concealment, whereas Section 74

would apply only in cases of willful suppression with the intent to evade.

Further it is submitted the demand is mathematically erroneous, as an

incorrect GST rate on annuity component has been levied including

components of interest on term deposits, which is fully exempt. The entire

nature of the Concession Agreement he submits has been mis-interpreted,

inasmuch as, the authorities mis-construed the true nature of the BOT

annuity model, by ignoring the fact that the petitioner provided integrated

service of road development and access and that the right to collect toll

being with NHAI, does not negate exemption. It has also been argued that

the period prior to introduction of GST i.e. pre-July 2017 period, cannot be

subjected to GST, and therefore the demand to that extent is illegal and

liable to be quashed. In summing up of his preliminary arguments, the

learned Senior counsel has submitted that the case hinges on a pure question

of law i.e. whether annuity receipts under BOT road projects are exempt

and has emphasized that the petitioner’s position, is supported by statutory

notifications, judicial precedent and a settled principle on interpretation of

exemptions and circulars.

13. The other submissions of the learned Senior counsel on the

points of availability of alternate remedy, interpretation of the GST 2026:MLHC:518-DB

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exemption notification, validity of the notification No. 14/17 (proper officer

issue) and other points on jurisdiction, nature of services are summed

hereinbelow: -

i) Eight principles where alternate remedy is not a bar

a) Whirlpool principle

b) Futility of alternate remedy

c) Pure question of law

d) Absence of jurisdictional facts

e) Premediated show cause notice

f) Error apparent on the face of the record

g) Action without jurisdiction/jurisdictional defect justifying writ

h) Violation of fundamental rights.

It has been argued that the case of the petitioner squarely falls

within the above noted recognized exceptions and therefore the existence

of an alternate remedy does not bar the writ petition. On the first principle,

it is submitted that the constitutional validity has been challenged i.e.

notifications that gave rise to the Show Cause Notice, a Circular that gave

authority to issue the adjudication order and another Circular dated

17.06.2021, that form the basis of the impugned order. These issues it is 2026:MLHC:518-DB

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submitted that go to the root of the matter cannot be decided by appellate

authorities, as only constitutional courts have powers of judicial review.

Resort to alternative remedy, it is submitted would be

ineffective and the appeal process would be futile because the impugned

Circular was issued by the CBIC the highest authority under statutory

powers and under Section 168 of the CBIC Act, all GST officers are bound

by such circulars and that even prior of issuance of the Show Cause Notice,

the Department had already pre-decided the issue based on the Circular.

Further it has been argued that there is lack of safeguards under GST law,

unlike the Customs Act or Central Excise Act because by virtue of Section

168 of the CGST Act, the authorities may act under dictation which violates

natural justice and even appellate authorities are not independent as they

are bound by the Circular. On this point, the learned Senior counsel submits

that as the case involves constitutional challenges, the alternate remedy

would be ineffective and biased due to the binding circulars, and therefore

the writ petition is maintainable.

14. It has also been submitted that the issues to be decided in the

instant writ petition, are pure questions of law and that there are no disputed

facts requiring evidence, and further in the instant case it is contended, the

writ petition would be maintainable, as the conditions for assuming 2026:MLHC:518-DB

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jurisdiction are missing. It has also been argued that the Show Cause Notice

was already premeditated and there is error apparent on the face of the

record on the misinterpretation of prevailing law by the respondents, which

has resulted in the violation of the petitioner’s fundamental rights to carry

on trade. He therefore, submits that the case fits within the recognized

exceptions and as it involves constitutional challenges, the alternate remedy

is ineffective and biased, more so due to the binding circulars. The learned

Senior counsel has given the list of cases relied upon, which are as follows:

-

i) Whirpool Corporation v. Registrar of Trademark: (1998) 8

SCC 1

ii) Onkar Nand Lal v. State of Rajasthan: (1985) 4 SCC 404

iii) Filter Co. and Another v. Commissioner of sales Tax, Madhya

Pradhesh and Anr. (1986) AIR SC 626

iv) Canon India Private Limited. V. State of Tamil Nadu and Ors.

2014(305) ELT 255(Mad)

v) Vistar Construction (P) Ltd. Ltd. v. Union of India &

Ors.:2013 SCC Online Del 308

vi) M/s Godrej Sara Lee Ltd. v. The Excise and Taxation Officer-

cum-Assessing Authority and Ors.: 2023 SCC Online SC 95

vii) Aircel Ltd. and Anr. v. Commissioner Tax Officer: W.P.(C)

No. 1055/2013

viii) Union of India v. State of Haryana:(2000) 10 SCC 482

ix) Carona Ltd. v. Parvathy Swaminathan & Sons:(2007) 8 SCC

559 2026:MLHC:518-DB

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x) Raza Textiles v. Income Tax Officer: AIR 1973 SC 1362

xi) Calcutta Discount Co. v. Income Tax Officer, Companies

District I Calcutta and Another: AIR 1961 SC 372

xii) NCS Pearson Inc. v. UOI: W.P. No. 7635 of 2024

xiii) Siemens Ltd. v. State of Maharashtra:2006 12 SCC 33

xiv) Onyx Fisheries Ltd. v. Union of India:(2010) 13 SCC 427

xv) Syed Yakoob v. K.S. Radhakrishnan: AIR 1964 SC 477

15. Dr. N. Mozika, learned DSGI assisted by Ms. M. Myrchiang,

learned counsel on behalf of the Union respondents has submitted that the

Show Cause Notice (SCN) and Order-in-Original (OIO), are valid and

lawful and the petitioner’s claim for GST exemption is misconceived and

baseless. It has been contended that the Show Cause Notice issued by the

respondent No. 4, is legal and maintainable as he derives his power to act

as a Proper Officer by virtue of a Notification No. 14/2017 dated

01.07.2017, and by the CBIC Circular No. 31/05/2018-GST dated

09.02.2018, all officers up the rank of Additional/Joint Commissioner of

Central Tax are empowered as Proper Officers for issuance of show cause

notices and orders under various clauses of Section 73 and Section 74 of

the CGST Act, IGST Act, as per monetary limit involved in the SCN. As

such he submits, the challenge to jurisdiction is baseless and invalid. It is

further submitted that the case falls under Section 74 of the CGST Act, 2026:MLHC:518-DB

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which is for tax not paid, or erroneously refunded, or input tax credit

wrongly availed due to mis-statement or suppression of facts. It is submitted

that the petitioner despite the fact that they had received the payment on

execution of the construction activities which is not in lieu of toll, had mis-

stated the true nature of services by declaring the same to be under SAC

9967 rather than SAC 9954, and had attempted to avoid GST, on the

construction services.

16. The learned DSGI on the issue of GST on the Annuity Payment,

submits that in the 22

nd

GST Council meeting on a proposal that had been

floated to treat annuity at par with toll and to exempt from tax service by

way of access to a road or bridge on payment of annuity, a notification dated

13.10.2017 had been issued inserting Entry 23A, by which service by way

of access to a road or a bridge on payment of annuity was exempted.

However, he submits in the 43

rd

GST Council meeting, a clarification to

Entry 23A was proposed to not exempt annuity paid for construction of

road, and to only exempt services provided by way of access to a road or

bridge on payment of annuity for it. Accordingly he submits, a Circular

dated 17.06.2021 was issued, clarifying that Entry 23A does not exempt

GST on the annuity (deferred payments) paid for construction of roads.

Thus, he submits the Circular dated 17.06.2021, is valid and based on GST 2026:MLHC:518-DB

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Council recommendations. It is submitted that the judicial precedent i.e. the

case of DPJ-Bidar-Chincholi (Annuity) Road Project cited by the petitioner

is still pending consideration in appeal and has not attained finality, to make

it binding in any manner.

17. The petitioner he submits as is borne out by records, is engaged

in construction, operation and maintenance of highways (BOT annuity

model) and as per the Concession Agreement, the work includes design,

engineering, finance, construction and maintenance, but however the toll

rights and other related commercial activities belong to the Government

(MoRTH), and not to the petitioner. It is then contended that the argument

of the petitioner that the substantial portion of the transactions entered prior

to GST could not be brought within the fold of GST is baseless, inasmuch

as, as per Section 142 (10) of the CGST Act, 2017, the services are taxable

where the goods and services are both supplied on or after the appointed

date in pursuance of a contract prior to the appointed date, shall be liable to

pay tax under the provisions of CGST Act, 2017. Further it submitted

Section 13, which determines the time of supply also covers the case the

petitioner, inasmuch as, the petitioner is providing continuous services in

different phases of construction etc., under a single agreement dated

16.07.2010, wherein as per the agreement itself the petitioner is obliged to 2026:MLHC:518-DB

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issue invoices only after the date of commercial operations. The annuity

payments having been made after the commercial operation date, and the

amount of consideration received as annuity during 2017-18 to 2022-23,

only being taken into consideration, it has been submitted as per the time

of supply and services and the dates of issue of invoice, the GST liability

does arise. The petitioner therefore he submits, is not exempt from payment

of GST by virtue of the agreement dated 16.07.2010 and the nature of the

work that has been undertaken, which though composite, involving design,

finance, construction, operation and maintenance, however does not

include road access services, which is exempt.

18. On the point of the application of insolvency proceedings filed

before the Mumbai Bench of the NCLT, the learned DSGI submits that

apart from the fact that these insolvency proceedings were never informed

to the investigating authorities in Meghalaya by the petitioner or by the

Interim Resolution Professionals, ongoing insolvency proceedings do not

bar GST recovery, especially since the department is not part of the

resolution process, and nor is the resolution process binding on them. In

support of this submission, the learned DSGI has placed reliance in the case

of Electro Steels Ltd., vs State Jharkhand. Referring back to the case of

DPJ Bidar (supra), wherein the Karnataka High Court had declared the 2026:MLHC:518-DB

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Circular dated 17.06.2021 bad in law, as it had the overriding effect on the

notification dated 13.10.2017, the learned DSGI submits that the petitioner

herein failed to mention that in the same order dated 11.07.2022, it was also

held that nothing prevents the Department from imposing GST on the

consideration paid to concessionaires, like the petitioner on payment

received by way of annuity but that the same has to be done in the manner

known to law. The submission made earlier that the judgment has not

attained finality and the appeal still pending consideration, has also been

reiterated.

19. It has further been submitted that all the documents i.e. Show

Cause Notice, related notifications, circulars and documents submitted by

the petitioner have been examined thoroughly, which led the Adjudicating

authority to come to the conclusion that the petitioner had not paid GST, on

annuity payment received for the construction of road under the Jorabat-

Shillong Expressway project. Though demand of duty on annuity for the

month of December, 2022, had been found to be erroneously calculated, it

is submitted that notwithstanding this fact, as per the Order-in-Original

18.04.2024, passed by the Additional Commissioner of CGST, Shillong,

the Adjudicating authority had passed the said order subsequent to the

detailed submissions made during the personal hearing on 19.03.2024, and 2026:MLHC:518-DB

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also after careful examination of all the relevant documents. In this context

therefore, it is submitted that the judgments relied upon by the petitioner

i.e. order dated 12.09.2006 passed by the Supreme Court in the case of M/s

Tata Engineering and Locomotive company vs. Collector of Central

Excise, Pune, order dated 29.10.2010 passed in Civil Appeal No.

9489/2010 in the matter of Oryx Fisheries Pvt. Ltd., vs UOI and order

dated 20.10.2015, passed by the High Court of Kerala in the case of

Flipkart Internet Pvt. Ltd., vs. State of Kerala, are not applicable in the

instant case.

20. On the arguments of availability of alternate remedy, it has been

submitted that the petitioner has not exhausted the Departmental remedies

available to them, which would make the writ petition not maintainable.

The petitioner he submits, instead of filing appeal under Section 107 of the

CGST Act, 2017 read with Rule 108 of the Rules of 2017, has approached

this Court seeking constitutional remedies in spite of efficacious alternate

remedy being available. Though notwithstanding the availability of appeal

remedy he submits, this Court has the power to exercise writ jurisdiction in

certain situations, such as the breach of fundamental rights, violation of the

principles of natural justice, excess of jurisdiction, or a challenge to the

vires of a statute or delegated legislation. In the present case however, he 2026:MLHC:518-DB

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submits none of the above exceptions are present coupled with the fact that

writ jurisdiction is not available for interpretation of statutory provision,

when alternative remedy is available, which should be first exhausted and

also that a High Court cannot examine an assessment order, for the purpose

of interpretation of provisions. Hence, it is contended the writ petition is

not maintainable.

21. In concluding his submissions, the learned DSGI has stressed

that even on merits, i.e. the Proper Officer for issuance of show cause

notice, the same was in exercise of notification dated 01.07.2017 issued

under Section 3 read with Section 5 of the CGST Act, 2017, and Section 3

of the IGST Act, 2017 by CBEC (now CBIC) and these relevant

notifications and circulars are legally valid and issued under statutory

powers and GST Council recommendations. With regard to the validity of

a circular dated 05.07.2017 i.e. Proper Officer for adjudication of SCN, it

has been submitted that the same was issued in exercise of the powers

conferred by clause 2 (91) of the CGST Act, 2017 read with Section 20 of

the IGST Act, 2017 and subject to Section 5 (2) of the CGST Act, 2017 by

CBEC (now CBIC). Thus he submits, the petitioner is liable to pay GST on

annuity receipts as they represent consideration for taxable construction 2026:MLHC:518-DB

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services and the Show Cause Notice and Order-in-Original being valid,

lawful and within jurisdiction, the writ petition should be dismissed.

22. On behalf of the State respondents Nos. 2 & 7, apart from

endorsing the submissions made by the learned DSGI, Mr. N. Syngkon, the

learned GA has submitted that exemption cannot be allowed to the

petitioner, in view of Entry 23A in the exemption notification, exempting

only service by way of access to a road or a bridge on payment of annuity.

This he submits, will apply to cases where the NHAI grants any third-party

permission/license to collect toll, but such third party are paid in lieu of

such collection by way of annuity. The whole object he submits, of bringing

this amendment and insertion of Entry 23A was due to the reason that toll

was already exempted from GST, and the concessionaire engaged in service

of giving access to a road or a bridge, and gets paid from the share of toll

collection is not required to pay GST, in view of the exemption given to

toll. The petitioner he submits, has attempted to create confusion to portray

that BOT (annuity) which is the model of execution of work which had

been exempted by way of notification No. 12/2017 dated 28.06.2017, when

in fact what was exempted by Entry 23A was a service of a specific

description i.e. service by way of access to a road or a bridge on payment

of toll entry (Entry 23) and service by way of access to a road or a bridge 2026:MLHC:518-DB

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on payment of annuity (Entry 23A). The levy of GST rate he submits, will

depend on the kind of actual supply of service or goods and the service

provided by the petitioner being composite supply of work contract is

covered under Section 2 (119) of the CGST Act, and as such the contention

that they are engaged in more than construction and that they are into

business of giving access to the road is not correct as it does not have the

authority to collect toll in the instant project, and as such they are not in the

business or service of giving access to a road or a bridge, and their main job

is to construct, maintain and repair of the road.

23. The learned GA then further submits composite supply has been

mentioned in Section 8 of the CGST Act, which provides for tax liability

on composite and mixed supply. Section 8 (a) he submits, stipulates that a

composite supply comprising of two or more supplies, one of which is a

principal supply shall be treated as a supply of such principal supply.

Therefore, the rate of tax will be in terms of the rate of tax applicable for

the principal supply out of the total composite supply, which naturally has

to be bundled together. The construction of the road being a principal

supply engaged in by the petitioner, the rate of tax applicable on the

construction of the road will thus be applicable for the entire supply of

services like operation, maintenance, construction, repair etc., and thus if 2026:MLHC:518-DB

Page 24 of 51

the principal supply is not under an exemption notification, it would follow

that the whole supply will be taxed at the rate of the principal supply. This

he submits, will be applicable even if some items of the composite/ancillary

supply may be under an exemption notification. In this context, the learned

GA has referred to a write-up on understanding the meaning of composite

supply and mixed supply, and submits that in a composite supply the

combination of goods and services are naturally bundled, whereas in a

mixed supply the same are not naturally bundled and the services provided

by the petitioner being composite supply, therefore, principal supply will

be the predominant of a composite supply, which in the instant case is the

construction activities of the petitioner.

24. With regard to the contention of the petitioner that the show

cause notice as well as the adjudication order was passed by officers, who

are not proper officers, the learned GA has submitted that the same is

incorrect for the reason that the show cause notice was issued by the

Additional Director DGGI (Director General of Goods and Service Tax

Intelligence), who is the Proper Officer in terms of Section 2 (91) CGST

Act, inasmuch as, in terms of the said Section proper officer means the

Commissioner or an Officer of the Central Tax authority is assigned that

function by the Commissioner in the Board. In the instant case he submits, 2026:MLHC:518-DB

Page 25 of 51

by a notification No. 14/2017 dated 01.07.2017, the Board appointed the

DGGI, as a Central Tax officer and vested him with the power of

Commissioner, and as such the Additional Director, DGGI could exercise

the powers of the Commissioner. Further he submits, the adjudication order

was passed by the Additional Commissioner, CGST, Shillong, who is also

a Proper Officer in view of his appointment as a Central Tax officer vide

notification No. 2/2017 dated 19.06.2017, and subsequently vide

notification No. 2/2022 dated 11.03.2022, whereby amendment was made

to the earlier notification No. 2/2017, wherein Paragraph 3A was inserted.

Para 3A he submits, provides that notwithstanding anything contained in

paragraph 3, the Additional Commissioner or the Joint Commissioner of

Central Tax or the Commissioner of Central Tax are vested with the powers

for passing orders in respect of notices issued by the Officers of the Director

General of Goods and Service Tax Intelligence. Therefore he submits, the

Additional Commissioner having been appointed as Central Tax officer and

being vested with powers under Section 74 to pass orders in respect of

notices issued by the DGGI, he is the Proper Officer in terms of Section 2

(91) of the CGST Act, and as such there is no question of any lack of

jurisdiction, In support of his submission the learned GA has relied upon

the decision of the Allahabad High Court in the case of R.C. Infra Digital 2026:MLHC:518-DB

Page 26 of 51

Solution vs. Union of India passed in Case No. Writ Tax No. 229 of 2023

and in the case of Union of India vs. Azadi Bachao Andolan & Anr. (2004)

10 SCC 1, where he submits it has been held that as long as an authority

has power which is traceable to a source, the mere fact that the source of

powers is not indicated in an instrument does not render the instrument

invalid.

25. The learned GA has further argued that Section 2 (91) of CGST

is a provision which provides definition of a Proper officer, but however it

is not an enabling provision which are Sections 3 & 5, wherein the Central

Government by exercising Section 5 can invest power on any other officers

of Central Tax. Section 3 of the CGST Act, he submits provides that the

Government shall by notification appoint certain classes of officers for the

purpose of the Act and the Additional Commissioner of Central Tax, who

has passed the adjudication order has been mentioned in the classes of

officers in Section 3. The learned GA has then contended that the power to

appoint includes the power to invest with duties, is rooted in “the Doctrine

of Implied Powers” which means that when a law grants a specific power

to an authority, it implicitly grants all the ancillary powers to effectively

carry out that primary power. Article 73 of the Constitution he submits,

extends the executive power of the Union to matters on which Parliament 2026:MLHC:518-DB

Page 27 of 51

has the right to legislate, implicitly granting the executive the necessary

authority to act on these matters. In support of his contention, the learned

GA has placed reliance upon the case of Union of India vs. Paras

Laminates (P) Ltd., (1990) 4 SCC 453, which he submits has held that

when a statute confers a jurisdiction, is also confers by implication the

power of doing of such acts or employing such means as are essentially

necessary to the execution. Reliance has also been placed in the case of

Union of India vs. Gurbux Singh & Anr. (1975) 3 SCC 638. He then

submits that the argument advanced by the petitioner that there was no

investment of power to issue the show cause or to pass the adjudication

order is hyper technical and without any basis. It is further submitted that it

is not the case of the petitioner that have not been provided with a show

cause notice or that they were not given an opportunity to reply, and as such

cannot allege that there has been a violation of natural justice.

26. On the exception referred to by the petitioner under Schedule-

II, 5 (b) of the CGST Act, wherein it has been asserted that on the supply

of the services, payment has been received by the petitioner after issuance

of the completion certificate, and hence in terms of the exception, the

petitioner is not required to pay GST, the learned GA has contended that

the same, would have no application as it does not relate to road 2026:MLHC:518-DB

Page 28 of 51

construction but to real estate, where buildings are made with an intention

to sell to a buyer. In the instant case he submits, it is never the case that the

petitioner had acquired or owned land where the road has been constructed

or sale, and as such the exception under Schedule-II 5(b) is not attracted.

The petitioner’s liability as per the agreement is only to maintain, construct

and repair the road till the year 2031, when the concession period will end,

and that the services supplied come under paragraph-6 of Schedule-II,

which relate to composite supply covered under definition of works

contract under Section 2 (119) of the CGST Act. The learned GA then

closes his submission by praying that in the facts and circumstances placed

above, the writ petition be dismissed.

27. This Court has heard the lengthy submissions advanced by the

parties and also perused the written submissions that have been filed. As

noted earlier the entire dispute revolves around the jurisdiction to issue the

show cause notice and adjudicating order, the classification of services

whether the same would be under SAC 9967 or 9954, whether annuity

payments can be treated at par with toll and exempted from GST. Heavy

reliance has been placed by the petitioner in the Karnataka High Court

Judgment namely; the DPJ Bidar case, wherein Circular No. 150/06/2021

was declared invalid and annuity to be exempt from payment of GST. An 2026:MLHC:518-DB

Page 29 of 51

issue has also been raised that the agreement being pre-GST, liability

cannot arise, and that writ remedy was sought as jurisdictional challenges

have been made to the notifications/circulars which the petitioner contends

are unconstitutional.

28. Before embarking and deliberating on the issues raised, it must

be kept in mind that the legal position is not settled, as even Courts like the

Karnataka High Court, have given mixed rulings where from, appeals are

still pending adjudication. However, for the purposes of this case, this Court

will examine the core issues i.e. firstly whether in the circumstances this

Court can exercise its discretionary powers under Article 226, or to relegate

the petitioner to avail of alternate remedy. As noted earlier, the petitioner

has invoked the extraordinary jurisdiction of this Court under Article 226

of the Constitution of India seeking inter alia quashing of the Show Cause

Notice dated 30.09.2023 and Order-in-Original dated 18.04.2024 issued

under Section 74 of the Central Goods and Services Tax Act, 2017 and

corresponding provisions of the Meghalaya Goods and Services Tax Act,

2017. Challenge has also been made to validity of the notifications and

circulars i.e. Notification No. 14/2017 (01.07.2017), CBIC circular No.

31/05/2018-GST and circular No. 03/03/2017-GST investing powers of

Proper Officer to issue the Show Cause Notice and the Order-in-Original, 2026:MLHC:518-DB

Page 30 of 51

which it has been contended is incompetent and without jurisdiction. It is

settled law that to entertain a petition under Article 226, there must exist

facts which goes to the root of the jurisdiction of the officer, which would

show that injustice would be caused to force an assessee to adopt the

remedy provided under the Act.

29. It is a settled proposition of law that although the power of

judicial review vested in High Courts under Article 226 of the Constitution

is wide and plenary in nature, such power is ordinarily not exercised where

the statute itself provides a complete machinery for redressal of grievances.

The doctrine of alternate remedy is a rule of self-imposed restraint and

judicial discipline evolved over time so that statutory authorities and

appellate mechanisms created under legislation may first be permitted to

examine and adjudicate disputes arising under such enactments.

30. The petitioner has attempted to bring the present case within

the recognized exceptions carved out by judicial pronouncements, namely:

(i) violation of principles of natural justice; (ii) proceedings initiated

without jurisdiction; (iii) infringement of fundamental rights; (iv) challenge

to constitutional validity; and (v) cases where the remedy is inefficacious. 2026:MLHC:518-DB

Page 31 of 51

31. The Court is therefore required to examine whether the facts of the

present case satisfy any of the recognized exceptions so as to justify

invocation of extraordinary jurisdiction.

32. The principal submission of the petitioner is that the authorities

issuing the Show Cause Notice and the Order-in-Original lacked

jurisdiction and consequently the proceedings are void ab initio. In support

thereof, challenge has been made to Notification No. 14/2017 dated

01.07.2017, Circular No. 03/03/2017 and other notifications by which

officers of DGGI and officers of the rank of Additional Commissioner have

been vested with powers under the CGST Act.

33. This Court is unable to accept the contention of the petitioner.

Section 2(91) of the CGST Act defines a "Proper Officer" to mean the

Commissioner or officer of central tax assigned that function by the

Commissioner in the Board. Sections 3 and 5 of the Act confer authority

upon the Government to appoint classes of officers and vest powers upon

such officers for carrying out purposes under the Act. The Show Cause

Notice was issued by the Additional Director DGGI (Director General of

Goods and Service Tax Intelligence), who in terms of Section 2 (91) of the

CGST Act, would be regarded as Proper Officer, inasmuch as, it is provided

therein, that the same can mean the Commissioner or the Officer of the 2026:MLHC:518-DB

Page 32 of 51

Central Tax, who is assigned that function by the Commissioner in the

Board. The function therefore, in the context of the instant case, would

mean the function of the Commissioner and as by notification No. 14/2017

Central Tax dated 01.07.2017, the Board having appointed the Additional

Director DGGI as Central Tax Officer and having invested him with the

power of Commissioner, in the considered view of this Court the Additional

Director DGGI was competent to issue the Show Cause Notice in terms of

Section 74 of the CGST Act.

34. With regard to the adjudication order passed by the Additional

Commissioner CGST, Shillong, the same analogy would apply, inasmuch

as, he would also be a Proper Officer in view of his appointment as a Central

Tax Officer vide notification No. 2/2017 Central Tax dated 19.06.2017 and

subsequently vide notification No. 2/2022 Central Tax dated 11.03.2023,

wherein an amendment was made to the earlier notification and paragraph

3A inserted. By paragraph 3A (ii) a table namely Table-V was inserted,

wherein the powers of Additional Commissioner of Central Tax, were

vested with powers as specified in the corresponding entry at column-3 of

the said Table. Column-3, has defined the powers exercisable throughout

the territory of India and it is has invested the power for passing an order or

decision in respect of notices issued by the officers of the Directorate 2026:MLHC:518-DB

Page 33 of 51

General of Goods and Service Tax Intelligence under Section 67, 73, 74,

76, 125, 127, 129 and 130 of the CGST Act, 2017. Further, by a

corrigendum dated 29.07.2019, it is noted that notification No. 2/2017 has

been corrected, wherein for “the Central Board Excise & Customs” the

same to be read as “the Government”. Therefore, the Additional

Commissioner Central Tax having been appointed as Central Tax Officer

and vested with power under Section 74 to pass orders in respect of notices

issued by the DGGI, he would be the Proper Officer in terms of Section

2(91) of the CGST Act. To illustrate the above, Notification No. 02/2022

dated 11.03.2022, Notification No. 14/2017 dated 01.07.2017, relevant

extract of notification No. 2/2017 dated 19.06.2017 and corrigendum dated

29.07.2019 are reproduced hereinbelow:-

[To be published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-

section (i)]

Government of India

Ministry of Finance

(Department of Revenue)

Central Board of Indirect Taxes and Customs

Notification No. 02/2022-Central Tax

New Delhi, the 11

th

March, 2022

G.S.R (E).– In exercise of the powers under section 3 read with section 5 of the

Central Goods and Services Tax Act, 2017 (12 of 2017) and section 3 of the Integrated

Goods and Services Tax Act, 2017 (13 of 2017), the Central Government, hereby

makes the following amendments in the notification of the Government of India in

the Ministry of Finance (Department of Revenue) No. 02/2017-Central Tax, dated the 2026:MLHC:518-DB

Page 34 of 51

19

th

June, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3,

Sub-section (i) vide number G.S.R. 609(E), dated the 19

th

June, 2017, namely: -

In the said notification,–

(i) after paragraph 3, the following paragraph shall be inserted, namely :-

“3A. Notwithstanding anything contained in paragraph 3, the Additional

Commissioners or the Joint Commissioners of Central Tax, as the case may be,

subordinate to the Principal Commissioners of Central Tax or the Commissioners

of Central Tax, as specified in column (2) of Table V, are hereby vested with the

powers as specified in the corresponding entry in Column

(3) of the said Table.”;

(ii) after Table IV, the following Table shall be inserted, namely:-

“TABLE V

Powers of Additional Commissioner or Joint Commissioner of Central Tax

for passing an order or decision in respect of notices issued by the officers of

Directorate General of Goods and Services Tax Intelligence

Sl. No. Principal Commissioner or

Commissioner of Central Tax

Powers

(Exercisable throughout the territory of

India)

(1) (2) (3)

1. Principal Commissioner Ahmedabad South Passing an order or decision in respect

of notices issued by the officers of

Directorate General of Goods and

2. Principal Commissioner Bhopal

3. Principal Commissioner Chandigarh

4. Commissioner Chennai South

5. Principal Commissioner Delhi North

6. Principal Commissioner Guwahati

7. Commissioner Rangareddy

8. Principal Commissioner Kolkata North

9. Principal Commissioner Lucknow

10. Commissioner Thane

2026:MLHC:518-DB

Page 35 of 51

[F. No. CBIC-20016/2/2022-

GST]

(Rajeev Ranjan)

Under Secretary to the Government of India

Note: The principal notification No. 02/2017- Central Tax, dated the 19

th

June,

2017, was published in the Gazette of India, Extraordinary, Part II, Section 3,

Sub-section (i) vide number G.S.R. 609(E), dated the 19

th

June, 2017 and last

amended vide Notification No. 02/2021 – Central Tax , dated the 12

th

January, 2021

published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i)

vide number G.S.R. 18(E), dated the 12

th

January, 2021.

2026:MLHC:518-DB

Page 36 of 51

[TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART

II, SECTION 3, SUB-SECTION (i)]

Government of India

Ministry of Finance

Department of Revenue

Central Board of Excise and Customs

Notification No. 14/2017 – Central Tax

New Delhi, the 1

st

July, 2017

10 Ashadha, 1939 Saka

G.S.R (E).- In exercise of the powers conferred under section 3 read with section 5

of the Central Goods and Services Tax Act, 2017 (12 of 2017) and section 3 of the

Integrated Goods and Services Tax Act, 2017 (13 of 2017), the Central Board of

Excise and Customs hereby appoints the officers in the Directorate General of Goods

and Services Tax Intelligence, Directorate General of Goods and Services Tax and

Directorate General of Audit as specified in column (2) of the Table below, as central

tax officers and invests them with all the powers under the Central Goods and

Services Tax Act, 2017 and the Integrated Goods and Services Tax Act, 2017 and the

rules made there under, throughout the territory of India, as are exercisable by the

central tax officers of the corresponding rank as specified in column (3) of the said

Table, namely:-

TABLE

Sl. No. Officers Officers whose powers are to

be exercised

(1) (2) (3)

1. Principal Director General, Goods and Services

Tax Intelligence or Principal Director General,

Goods and Services Tax

Principal Chief

Commissioner

2. Director General, Audit Chief Commissioner

3. Principal Additional Director General, Goods and

Services Tax Intelligence or Principal Additional

Director General, Goods and Services Tax or

Principal Additional Director General, Audit

Principal Commissioner

4. Additional Director General, Goods and Services

Tax Intelligence or Additional Director General,

Goods and Services Tax or Additional Director

General, Audit

Commissioner

5. Additional Director, Goods and Services Tax

Intelligence or Additional Director, Goods and

Services Tax or Additional Director, Audit

Additional Commissioner 2026:MLHC:518-DB

Page 37 of 51

6. Joint Director, Goods and Services Tax

Intelligence or Joint Director, Goods and Services

Tax or Joint Director, Audit

Joint Commissioner

7. Deputy/Assistant Director, Goods and Services

Tax Intelligence or Deputy/Assistant Director,

Goods and Services Tax or Deputy/Assistant

Director, Audit

Deputy Commissioner or

Assistant Commissioner

8. Senior Intelligence Officer, Goods and Services

Tax Intelligence or Superintendent, Goods and

Services Tax or Superintendent, Audit

Superintendent

9. Intelligence Officer, Goods and Services Tax

Intelligence or Inspector, Goods and Services Tax

or Inspector, Audit

Inspector

2. This notification shall come into force with effect from the 1

st

day of July, 2017.

[F. No. 349/52/2017-GST]

(Dr. Sreeparvathy S.L.)

Under Secretary to the Government of India

2026:MLHC:518-DB

Page 38 of 51

[TO BE PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY, PART II,

SECTION 3, SUB-SECTION (i)]

GOVERNMENT OF INDIA

MINISTRY OF FINANCE

DEPARTMENT OF REVENUE

CENTRAL BOARD OF EXCISE AND CUSTOMS

Notification No. 2/2017-Central Tax

New Delhi, the 19

th

June, 2017

29 Jyaistha, 1939 Saka

G.S.R (E).- In exercise of the powers under section 3 read with section 5 of the Central

Goods and Services Tax Act, 2017 (12 of 2017) and section 3 of the Integrated Goods and

Services Tax Act, 2017 (13 of 2017), the Central Board of Excise and Customs hereby

appoints-

(a) Principal Chief Commissioners of Central Tax and Principal Directors General of

Central Tax,

(b) Chief Commissioners of Central Tax and Directors General of Central Tax,

(c) Principal Commissioners of Central Tax and Principal Additional Directors General of

Central Tax,

(d) Commissioners of Central Tax and Additional Directors General of Central Tax,

(e) Additional Commissioners of Central Tax and Additional Directors of Central Tax,

(f) Joint Commissioners of Central Tax and Joint Directors of Central Tax,

(g) Deputy Commissioners of Central Tax and Deputy Directors of Central Tax,

(h) Assistant Commissioners of Central Tax and Assistant Directors of Central Tax,

(i) Commissioners of Central Tax (Audit),

(j) Commissioners of Central Tax (Appeals),

(k) Additional Commissioners of Central Tax (Appeals),

and the central tax officers sub-ordinate to them as central tax officers and vests them with

all the powers under both the said Acts and the rules made thereunder with respect to the

jurisdiction specified in the Tables given below.

2. The Principal Chief Commissioners of Central Tax or the Chief Commissioners of 2026:MLHC:518-DB

Page 39 of 51

Central Tax, as the case may be, specified in column (2) of Table I, are hereby vested with

the territorial jurisdiction over the-

(a) Principal Commissioners of Central Tax and Commissioners of Central Tax, as

the case may be, specified in the corresponding entry in column (3) of the said

Table;

(b) Commissioners of Central Tax (Appeals) specified in the corresponding entry in

column (4) of the said Table;

(c) Additional Commissioners of Central Tax (Appeals) specified in the corresponding

entry in column (4) of the said Table; and

(d) Commissioners of Central Tax (Audit) specified in the corresponding entry in

column (5) of the said Table. 2026:MLHC:518-DB

Page 40 of 51

[TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART

II, SECTION 3, SUB-SECTION (i)]

Government of India

Ministry of Finance

(Department of Revenue)

Central Board of Indirect Taxes and Customs Corrigendum

New Delhi, the 29

th

July, 2019

G.S.R. (E).: - In the notification of the Government of India, in the Ministry of

Finance, Department of Revenue, No.14/2017-Central Tax, dated the 01

st

July, 2017,

published in the Gazette of India, Extraordinary, Part II, Section 3, Sub- section (i),

vide number G.S.R. 818(E), dated the 01

st

July, 2017, in English version, in page 2, in

line 3, for “ the Central Board of Excise and Customs” read “the Government”.

[F. No 349/52/2017-GST]

(Ruchi Bisht)

Under Secretary to the Government of India

35. It is to be noted that though Section 2(91) of CGST Act is a

provision which provides the definition of a Proper officer, however the

enabling provisions are Sections 3 (officers under the Act) and Section 5

(powers of officers). As per Section 5(1) of the Act, it is the Board that

confers and enforces such conditions and limitation on an officer of Central

Tax or exercising the powers and duties conferred under the Act. Section 2

(16) of the Act says that ‘Board’ means the Central Boards of Indirect Taxes

and Customs constituted under the Central Boards of Revenue Act, 1963 and 2026:MLHC:518-DB

Page 41 of 51

further Section 3 of this Act, relating to constitution of Central Boards says

that it is the Central Government, which shall constitute the Board and the

same shall be subject to the control of the Central Government. In this

context, the judgment in the case of RC Infra Digital Solution vs. Union of

India can be referred to on the question that when the power has been

invested with the Board to do certain things, how can the Government not

exercise such a power. Paras 18 to 21 which are relevant are reproduced

hereinbelow:-

“18. It is apparent from the above that as per section 5 (1) of CGST

Act, 2017, it is the Board, which confers and impose such

conditions and limitation on an officer of central tax for exercising

the powers and duties conferred under the CGST Act,

2017 and section 5(3) of CGST Act, 2017 empowers the

commissioner to delegate his powers to any other officer, who is

subordinate to him. Further, section 2 (16) of the CGST Act, 2017

says that "Board" means the Central Board of Indirect Taxes and

Customs constituted under the Central Boards of Revenue Act,

1963 (54 of 1963). Further, section 3 of the Central Boards of

Revenue Act, 1963 relating to Constitution of Central Boards for

Indirect Taxes and Customs says that it is the Central Government,

which shall constitute the Central Board of Indirect Taxes and

Customs and the said Board shall be subject to the control of the

Central Government and shall exercise such powers and perform

such duties, as may be entrusted to that Board by the Central

Government or by or under any law. Thus, it appears that the

Board is subservient to the Government under the Act and it could

be well argued that when the power has been invested with the

Board to do certain things, how can the Government not exercise

such a power.

19 However, the question of investing powers on the central tax

officers by the Board or the government does not end there as this

court finds that the Circular No.3/3/2017-GST dated July 5, 2017 2026:MLHC:518-DB

Page 42 of 51

(Annexure-11) issued by the Commissioner in Board relates to

assignment of various functions under CGST Act, 2017 to different

class of officers, who had been construed to be DGSI officers in

terms of Notification No. 14/2017.

20. A conjoint reading of Notification No. 14/2017 dated 01.07.2017

and Circular No. 3/3/2017-GST dated 05.07.2017 sufficiently

contemplates the assigning of powers to DGSI officers by the Board.

Let's take an example, as per the circular of 05.07.2017, a

Superintendent of Central Tax has been assigned the power to

function as is mentioned in Sub-section (1) of section 70 and a

reading of Notification 14/2017 leads us to conclude as mentioned

in serial No. 8 that a senior Intelligence officer, Goods and Service

Tax Intelligence or Superintendent, Goods and Service Tax or

Superintendent, Audit has been notified to be appointed under

section 3 of the GST Act as a central Tax officer and is invested with

all the powers under the central Goods and Service Tax Act, 201,

throughout the territory of India, as are exercisable by the central

Tax officers of the rank of "superintendent". In any case, this court

does not find any force in holding that such technical nuances to be

fatal for the Notification or to the functions performed by various

DGGI officers. The jurisprudence on the implications of invocation

of a wrong provision suggests that as long as an authority has

power, which is traceable to a source, the mere fact that source of

power is not indicated or wrongly indicated in an instrument does

not render the instrument invalid.

21. For all the aforesaid reasons, this Court is not inclined to hold

that the impugned Notification No. 14/2014 dated 01.07.2017 is

ultra vires to the powers provided to the Government under

the CGST Act, 2017.

36. The materials placed before this Court therefore, indicate that

the officers concerned have been appointed by notifications issued in

exercise of statutory powers under Sections 3 and 5 of the CGST Act.

Further, notifications and circulars relied upon by the respondents have

demonstrated that officers of DGGI as well as Additional Commissioners 2026:MLHC:518-DB

Page 43 of 51

have been assigned functions relating to issuance and adjudication of

proceedings under Sections 73 and 74 of the Act.

37. It would also be relevant in the context of the present discourse

to observe that even though a contention has been raised on jurisdiction

based on the contents of the notifications on which the proceedings have

been executed, especially on the point raised that the Notification 02/2017,

only confers territorial jurisdiction and not subject matter jurisdiction, the

same being only a technicality, the contention is rejected. As has been held

in the case of UOI vs Azadi Bachao Andolan (supra) “it is trite law that as

long as an authority has power, which is traceable to a source, the mere fact

that the source of the power is not indicated in an instrument does not render

the instrument invalid”. Further, in the case of Union of India vs. Paras

Laminates (P) Ltd., (supra) on this question at Para-8 thereof, Maxwell on

Interpretation of statutes has been quoted, which says “where an Act confers

a jurisdiction it impliedly also grants the power of doing all such acts, or

employing such mean, as are essentially necessary to its execution”.

38. At this stage, this Court is not persuaded that the challenge

raised demonstrates an inherent lack of jurisdiction or absence of

jurisdictional facts going to the root of the matter. Mere disagreement

regarding interpretation of the scope of powers conferred under statutory 2026:MLHC:518-DB

Page 44 of 51

notifications cannot by itself convert an issue into a jurisdictional defect

warranting interference under Article 226.

39. The petitioner has also contended that constitutional challenges

have been raised against the notifications and circulars and therefore the writ

petition deserves to be entertained.

40. This Court observes that merely because a challenge to

notifications or circulars has been couched in constitutional terms does not

automatically confer maintainability where the substance of the dispute

pertains to tax assessment and classification. Courts are required to examine

the true nature of the controversy and not merely the form in which reliefs

have been drafted.

41. On a careful consideration of the pleadings, it is evident that the

central controversy between the parties concerns classification of services

under SAC 9954 or SAC 9967, applicability of exemption under Entry 23A

of Notification No. 12/2017, characterization of annuity receipts under BOT

projects, and taxability of composite supplies under the CGST framework.

Though on a plain analysis, by virtue of Entry 23A, the petitioner would be

liable for payment of GST on Annuity, the other questions that remain

however would involve the interpretation of contractual clauses,

examination of the nature of services rendered under the Concession 2026:MLHC:518-DB

Page 45 of 51

Agreement, determination of principal supply, applicability of exemption

notifications, and appreciation of factual as well as legal aspects.

42. Such questions, in the considered opinion of this Court, cannot

be regarded as pure questions of law capable of adjudication in writ

jurisdiction in the first instance.

43. The contention of the petitioner that the issue stands concluded

by the judgment rendered by the Karnataka High Court in the matter relating

to DPJ Bidar, also cannot persuade this Court to entertain the writ petition.

The respondents have pointed out that proceedings arising therefrom, are

stated to be pending consideration and, in any event, the legal position itself

has not attained finality.

44. This Court also notices that the petitioner had participated in

adjudication proceedings pursuant to directions of the Hon'ble Supreme

Court, submitted replies, appeared during personal hearing and advanced

detailed submissions before the adjudicating authority. The Order-in-

Original records consideration of such submissions and ultimately arrived at

conclusions on merits.

45. Whether the findings recorded therein are correct or erroneous

is a matter falling squarely within the appellate mechanism contemplated

under the statute. 2026:MLHC:518-DB

Page 46 of 51

46. The petitioner has further argued that the alternate remedy

available under the CGST Act is inefficacious because authorities under the

statute would be bound by circulars issued under Section 168 of the Act.

47. This argument also cannot be accepted. Mere existence of

binding circulars does not render the statutory appellate mechanism otiose

or ineffective, and though remedy may not be as efficacious as a writ

petition, alternate remedy however, as in the present case, is handy and

accessible. Moreover, though orders or instructions issued by the Board is

not law, it may be binding upon the authorities but not the Appellate

Authority, who is not bound to take judicial notice of such order or

instruction. The instant case is not a case of palpable injustice being caused

to force an assessee to adopt the remedy, inasmuch as, the appellate authority

under the Act, possesses powers to examine questions arising from the

adjudication order, and thereafter, statutory remedies extending up to

judicial forums are also available. On this aspect reference, can be made to

the judgement in the case of Bela Singh Daulat Singh Vs Commissioner of

Income Tax reported in (1966) 62 ITR 250, 1965 SCC online All 499

wherein, in an extract from paragraph 7 it has been held as follows:-

“ The assessee relied upon a circular said to have been issued

by the Central Board of Revenue. The circular is not a law; it

may bind the income-tax authorities but cannot be said to be 2026:MLHC:518-DB

Page 47 of 51

law merely because it does so. A party is bound by a decree

passed against him and a Government is bound by a

mandamus issued against it but neither the decree in the first

instance nor the mandamus in the second instance amounts

to law. Consequently, the Tribunal was not, and this court is

not, bound to take judicial notice of the circular. ”…..

Similarly, in another case that is Indo- Gulf Fertilizers and

Chemicals Corporation Limited Vs Union of India and another reported

in 1992 SCC Online All 1067, at paragraph 11 thereof, it has been held as

follows:-

“11. To re-enforce the submission that the additional tax on the loss

figure, after adjustment, has been rightly levied, learned counsel for

the opposite parties has placed reliance upon the directions issued

by the Board under the title “Kar Niriharan ke Naye Pravidhan Aur

Unki Prakriya”. It contains certain examples on the working bf (sic)

section 143 of the Act. In one of the examples, it is provided that

additional tax is chargeable even if, after adjustment, it results in

loss return. The submission is that the authorities are bound by the

directions issued by the Board, hence they have committed no

mistake in passing the impugned order in accordance with the

directions indicated above. He refers to section 119 of the Act under

which the authorities of the Department are bound to carry out the

directions issued by the Board. In this connection, it may be

observed that so far as the direction given by the Board is concerned,

it may no doubt be binding upon the departmental authorities, but

such directions do not bind the courts, and it is needless to cite cases

on the point. So far as courts are concerned, they would only

examine whether the orders passed by the departmental authorities

are in accordance with the provisions of the Act or not. If the

directions of the Board are beyond the scope of the provisions of the

Income-tax Act, they will not hold good and the authorities can very

well be asked to act according to law.”

(Emphasis supplied) 2026:MLHC:518-DB

Page 48 of 51

As such therefore, in view of the above, acceptance of such an

argument, would effectively result in bypassing statutory remedies in every

case involving departmental circulars, which would defeat the legislative

intent underlying the enactment.

48. The Supreme Court has repeatedly emphasized that tax

statutes constitute complete codes in themselves providing remedies by way

of appeal and revision. Interference in writ jurisdiction at the stage of

assessment or adjudication is therefore to be exercised sparingly and only in

exceptional circumstances.

49. Several decisions to support the contention as to maintainability

or entertainability of this writ petition, were cited at the bar, which have been

noted above and it may not be necessary to refer to all those decisions except

to outline the more defining ones namely; i) Whirlpool Corporation vs.

Registrar of Trademarks (supra), wherein the Supreme Court identified

three well recognized exceptions where the writ petition remain

maintainable despite alternative remedies which are; Enforcement of

fundamental rights, Violation of the principles of natural justice and

Orders/Proceedings that are wholly without jurisdiction or where the vires

of a statute is challenged. ii) Canon India Private Limited vs. State of Tamil 2026:MLHC:518-DB

Page 49 of 51

Nadu, which supports the direct invocation of writ jurisdiction where

departmental policy pre-determines the outcome. iii) Aircel Limited vs.

Commissioner Tax (supra), wherein it was held that since the materials facts

were undisputed and only legal question arose, the High Court ought to have

adjudicated the matter instead of dismissing it on the ground of alternative

remedy. iv) Calcutta Discount Company vs. Income Tax Officer

Companies District etc., (supra) on the principle that the existence of

statutory preconditions is essential before jurisdiction can be exercised

which supports judicial interference when statutory conditions authorising

action are absent. v) NCS Pearson Inc. vs. UOI on the principle that

jurisdiction under Section 74 of the CGST Act depends upon the existence

of wilful suppression with intent to evade tax and that when this fact is

neither satisfied or fulfilled in the SCN, the same deserves to be quashed. vi)

Onyx Fisheries Ltd., vs Union of India, on the point that a quasi-judicial

authority while exercising its statutory power must act fairly and with an

open mind while initiating a show cause proceeding without displaying bias

or predetermination.

50. Having considered the entirety of the facts and circumstances,

and taking into account the authorities placed by the petitioner, this Court is 2026:MLHC:518-DB

Page 50 of 51

of the considered view that none of the recognized exceptions to the rule of

alternate remedy have been made out by the petitioner.

51. No violation of principles of natural justice has been

demonstrated. No patent lack of jurisdiction has been established. The

challenge raised by the petitioner substantially pertains to adjudicatory

findings and interpretation of statutory provisions and exemption

notifications which are amenable to examination before the appellate

authority under the CGST Act.

52. Consequently, this Court declines to exercise jurisdiction

under Article 226 of the Constitution of India.

53. Accordingly, the writ petition stands dismissed on the ground

of availability of an efficacious alternate statutory remedy.

54. However, considering the fact that the petitioner has pursued

proceedings before this Court bona fide, liberty is granted to the petitioner

to avail the statutory remedy of appeal under Section 107 of the CGST Act

within a period of four weeks from today. In the event such appeal is

preferred within the aforesaid period, the appellate authority shall consider

the same on its own merits and in accordance with law, without being

influenced by any observations made in this judgment. 2026:MLHC:518-DB

Page 51 of 51

55. Pending Miscellaneous applications, if any, shall stand

disposed of.

56. No order as to costs.

(B. Bhattacharjee) (H.S. Thangkhiew)

Judge Judge

Meghalaya

02.06.2026

“V. Lyndem- PS”

2026:MLHC:518-DB