Reckitt Benckiser India Private Limited v. Union of India and Others

Case snapshot

Sections / provisions: GST statutory provision - Section 2(108); GST statutory provision - Section 2(62); GST statutory provision - Section 2(80); GST statutory provision - Section 4(1); GST statutory provision - Section 9; GST statutory provision - Section 9A; GST statutory provision - Section 14; GST statutory provision - Section 15; GST statutory provision - Section 19(3); GST statutory provision - Section 57; GST statutory provision - Section 64; GST statutory provision - Section 64A

Questions before the Court / Tribunal

• Issue and context: W.P.(C) 7743/2019 & other connected matters $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7743/2019 RECKITT BENCKISER INDIA PRIVATE LIMITED ..... Petitioner Through: Mr. P. Chidambaram, Senior Advocate with Mr. R. Jawahar Lal, Mr. Siddharth Bawa Mr. Anuj Garg, Mr. Mohit Sharma and Ms. Harshita Advocates. Mr.Amar Dave, Amicus Curiae with Mr. Vikramaditya Bhaskar, Advocate. versus UNION OF INDIA THROUGH: ITS SECRETARY & ORS. ..... Respondents Through: Mr. Zoheb Hossain, Sanjeev Menon, Mr.Vivek Gurnani, Mr. Kavish Garach, Ms. Abhipriya, Mr.Vivek Gaurav, Ms.Sejal Aneja and Ms.Manisha, Advocates for NAA and DGAP. Mr.Asheesh Jain, CGSC with Mr. Gaurav Kumar Advocate for R-1 Mr.Farman Ali, Advocate with Ms.Usha and Mr.Krishan Kumar, Advocates for R-2 & 3 + W.P.(C) 10999/2018 M/S PYRAMID INFRATECH PRIVATE LIMITED ..... Petitioner Through: Mr.Abhishek A Rastogi, Ms.…
• Which factual, statutory and procedural conditions controlled the requested relief?
• How did the forum apply the governing provisions to the evidence and procedural history recorded in this case?

Material facts and procedural background

W.P.(C) 7743/2019 & other connected matters Page 52 of 142 UNION OF INDIA & ORS. ..... Respondents Through: Mr.Sanjay Kumar. SPC for R-1. Mr. Zoheb Hossain, Sanjeev Menon, Mr.Vivek Gurnani, Mr. Kavish Garach, Ms. Abhipriya, Mr.Vivek Gaurav, Ms.Sejal Aneja and Ms.Manisha, Advocates for NAA and DGAP. Mr.Sumit Gaur, Advocate for R-6, 7, 9, 11, 12, 13, 14 & 15. + W.P.(C) 16734/2022 & CM APPLs.52794-52795/2022 M/S NANDI INFRATECH PVT LTD ..... Appellant Through: Mr.Sandeep Chilana, Advocate with Mr.Rastogi, Ms. Anjali Jain, Mr. Abdullah Tanveer, Ms. Kannopriya Gupta, Ms. Jagriti, Mr. Priyojeet Chatterjee & Ms. Snehil Sharma, Advocates Versus UNION OF INDIA AND ORS ..... Respondents Through: Ms. Anushree Narain and Ms.Simran Kumari, Advocates for GST. Mr. Zoheb Hossain, Sanjeev Menon, Mr.Vivek Gurnani, Mr. Kavish Garach, Ms. Abhipriya, Mr.Vivek Gaurav, Ms.Sejal Aneja and Ms.Manisha, Advocates for NAA and DGAP. + W.P.(C) 16935/2022 & CM APPL.53667/2022 NEW WORLD REALTY LLP ..... Petitioner Through: Mr. Kumar Visalaksh, Mr. Udit Jain Mr. Arihant Tater and Mr.Ajitesh Dayal Singh, Advocates. Versus

W.P.(C) 7743/2019 & other connected matters Page 58 of 142 Section 64A of the Sale of Goods Act is not applicable to the obligation under Section 171……………………………….…136-137 A statutory provision cannot be struck down on the ground of possibility of abuse……………………………………….…138 To not compare taxes levied after the introduction of the Act, 2017 with a basket of distinct indirect taxes applicable before the operation of the Act would go against the intent and objective of Act, 2017………………………………..139-140 There is no vested right of appeal and an appeal is a creature of the statute…………………………………………….141-145 There is no requirement of Judicial Member in NAA……………..146-151 Rule 124 is in consonance with Article 50. There is no scope for governmental interference in functions exercised by NAA…………………………………………………………… 152 Rule 133 to the extent it provides for levy of interest and penalty is within the rule making power of the Central Government……. 153-156 Goods and Services Tax collected on the additional realization has rightly been included in the profiteered amount……………….….. 157 Time Limit for furnishing of report by DGAP is directory and not mandatory……………………………………………….158 Expansion of investigation beyond the scope of the complaint is not ultra vires the statute………………………………159-161 ACKNOWLEDGEMENT………………………………….…………………………162 TO SUM UP …………………………………………………………………….163-164

(3)The Director General of [Anti-profiteering] shall, before initiation of the investigation, issue a notice to the interested parties containing, inter alia, information on the following, namely:- (a) the description of the goods or services in respect of which the proceedings have been initiated;

W.P.(C) 7743/2019 & other connected matters Page 63 of 142 (b) summary of the statement of facts on which the allegations are based; and (c) the time limit allowed to the interested parties and other persons who may have information related to the proceedings for furnishing their reply. (4)The Director General of [Anti-profiteering] may also issue notices to such other persons as deemed fit for a fair enquiry into the matter. (5)The Director General of [Anti-profiteering] shall make available the evidence presented to it by one interested party to the other interested parties, participating in the proceedings. (6)The Director General of [Anti-profiteering] shall complete the investigation within a period of [six] months of the receipt of the reference from the Standing Committee or within such extended period not exceeding a further period of three months for reasons to be recorded in writing [as may be allowed by the Authority] and, upon completion of the investigation, furnish to the Authority, a report of its findings along with the relevant records.

W.P.(C) 7743/2019 & other connected matters Page 69 of 142 12. They stated that it is for this reason, the percentage of credit to turnover ratio (in Goods and Services Tax regime) had varied from 0.2% (in Vatika Limited, Case No. 64/2019 ) to 20.98% (in Emaar MGF Land Ltd, Case No. 26/2020) in the orders passed by NAA. 13. Learned counsel for the petitioners in Writ Petition No. 13657/2022 pointed out that DLF calculated the total savings on account of introduction of Goods and Services Tax for each project. He stated that the total savings/benefits were then divided by total area to arrive at the per square feet benefit to be passed on to each flat buyer. He stated that as a result the flat-buyers with equal area received equal benefit. In contrast to this, he pointed out that the NAA/DGAP calculated the benefit by comparison of ratios as explained above and then computed the profiteered amount as a percentage of consideration received from each flat-buyer in the Goods and Services Tax regime. Therefore, as per NAA/DGAP, similarly placed flat-buyers received inconsistent benefits. For the project Camellias, the benefits computed by both NAA/DGAP & DLF are tabulated below:

Appellant / petitioner / assessee submissions

W.P.(C) 7743/2019 & other connected matters Page 65 of 142 ARGUMENTS ON BEHALF OF THE PETITIONERS 4. Mr. P. Chidambaram, Mr. S. Ganesh, Mr. Tarun Gulati, Mr. Chinmoy Pradip Sharma and Mr.Pritesh Kapoor, learned Senior counsel as well as Mr. V. Lakshmikumaran, Mr. Monish Panda, Mr. Rohan Shah, Mr. Abhishek A. Rastogi, Mr. Tushar Jarwal, Mr. Sparsh Bhargava, Mr. Puneet Aggarwal, Mr. Sujit Ghosh, Mr. K. S. Suresh, Mr. Nikhil Gupta, Mr. Shashank Shekhar and Mr. Priyadarshi Manish, learned counsel addressed arguments on behalf of the petitioners. 5. Learned counsel for the petitioners submitted that Section 171(1) of the Act, 2017 and the Rules 126, 127 and 133 of the Rules, 2017 framed thereunder are unconstitutional as they are beyond the legislative competence of Parliament.

They submitted that the impugned provisions do not fall within the law-making power of Parliament under Article 246A of the Constitution of India. 6. Some of the learned counsel for the petitioners submitted that the antiprofiteering provision, as provided under Section 171 of the Act, 2017, is in the nature of a tax or financial exaction. They submitted that a tax can be levied from a subject only if there is a specific and unequivocal provision in the parent statute authorising such an exaction. According to them, such a financial exaction cannot be made lawfully by a subordinate legislation, when there is no empowering provision in the parent statute. In support of their submissions, they relied on the decisions of the Supreme Court in Ahmedabad Urban Development Authority v.

Sharakumar Jayantikumar Pasawala, (1992) 3 SCC 285 and V.V.S. Sugars v. Govt. of A.P., (1999) 4 SCC 192. 7. Learned counsel for the petitioners further submitted that the impugned Section and Rules suffer from vice of excessive delegation as they delegate essential legislative functions to the Government. Additionally, they submitted

They stated that in the absence of any guidelines, NAA had acted arbitrarily as is evident from the varied approaches taken by it while adjudicating cases of entities belonging to the same industry and dealing with similar products. 11. Learned counsel for the petitioners emphasised that the formula used by the respondents, for instance, for real estate companies during the course of investigation/adjudication, had not been notified. They stated that the

Revenue / respondent submissions

W.P.(C) 7743/2019 & other connected matters Page 80 of 142 (which was notified on 28 th June, 2017) was indeed the fountainhead of constitution of NAA, the same would go against the very understanding of the respondents as recorded in the 35 th and 45 th Goods and Services Tax Council Minutes of Meeting as well as the Memo dated 09 th September, 2019 of the Department of Revenue, Ministry of Finance, wherein it has been specifically observed that NAA had been constituted vide an office order dated 28 th November, 2017. ARGUMENTS ON BEHALF OF THE RESPONDENTS 35. Mr. Zoheb Hossain, learned counsel appearing on behalf of the Respondent-authorities, prefaced his submissions by stating that Parliament introduced the Act, 2017 in order to simplify and harmonise the indirect taxes regime in the country by eliminating the multiplicity of taxes that were levied on the same supply system as a result of which there was a cascading effect.

IMPUGNED PROVISIONS ARE NOT A PRICE FIXING MECHANISM. THEY DO NOT VIOLATE EITHER ARTICLE 19(1)(g) OR ARTICLE 300A OF THE CONSTITUTION 116. Section 171 of the Act, 2017 does not violate Article 19(1)(g) of the Constitution of India, as it is not a price-fixing mechanism. As rightly pointed out by the learned counsel for the Respondents, Section 171 of the Act, 2017 only relates to the indirect-tax component of the price of goods and services and does not impinge upon the freedom of suppliers to fix their own prices keeping in view

W.P.(C) 7743/2019 & other connected matters Page 122 of 142 hence these judgments do not apply to the present batch of matters. Consequently, the impugned provisions are not a price fixing mechanism and they do not violate either Article 19(1)(g) or Article 14 or Article 300A of the Constitution of India. REFERENCE TO ANTI-PROFITEERING PROVISIONS OF AUSTRALIA AND MALAYSIA IS MISCONCEIVED 122. The reference to Anti-profiteering provisions under the Australian Trade Practices Act by the petitioners is misplaced as pointed out by the learned counsel for the Respondents and as according to the petitioner’s own submissions, the Australian Act prohibits ‘ price exploitation’ in relation to the New Tax System i.e. that the Act by its nature regulates prices.

W.P.(C) 7743/2019 & other connected matters Page 128 of 142 requiring that the benefit in reduction of tax rate or Input Tax Credits, be passed on to the recipients by way of commensurate reduction in prices. 133. This Court is in agreement with the submission of Mr. Zoheb Hossain, learned counsel for the Respondents, that the benefit of tax reduction has to be passed on at the level of each supply of SKU to each buyer and in case it is not passed on, the profiteered amount has to be calculated on each SKU. 134. The contention of the learned counsel for the Petitioners that it is legally impossible to pass on the benefits by reducing the price of goods in cases of low priced products is untenable in law.

Court / Tribunal analysis and reasoning

W.P.(C) 7743/2019 & other connected matters Page 66 of 142 that the impugned provisions are ambiguous, arbitrary, violative of Article 14 and confer excessive powers on NAA to determine profiteering as no guidelines and/or legislative policy for the exercise of such powers by the authority so constituted have been laid down in the statute. They submitted that the failure to provide clear statutory guidance for exercise of powers by NAA in the formulation of such methodology amounts to “ delegation of essential legislative function” as these formulations were essential and therefore, the same should have been stipulated by the Legislature. They submitted that it is settled law that the legislative authority cannot be delegated under a statute without appropriate guidelines or safeguards.

W.P.(C) 7743/2019 & other connected matters Page 67 of 142 9. They submitted that the term ‘ commensurate’ is not defined in the Act, 2017 and the expression ‘ profiteering’ in Section 171 is dependent upon the scope and meaning of the phrase ‘ commensurate reduction in the price ’. According to them, as a result of this circular reasoning, NAA had complete and unfettered discretion to determine the extent of profiteering. They pointed out that the definition of profiteering inserted by way of amendment (that came into force only on 01 st January, 2020) is vague and uncertain as to how the amount of profiteering or commensurate reduction in price has to be determined and therefore, the same is ex facie arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution of India.

W.P.(C) 7743/2019 & other connected matters Page 71 of 142 comply with the law has no way of ensuring whether its methodology is in compliance with Section 171(1) of the Act, 2017 or not. 15. Learned counsel for the petitioners also submitted that the operation of Section 171 of the Act, 2017 amounted to price-fixing and is therefore violative of Articles 19(1)(g) and 300A of the Constitution. They submitted that according to NAA’s interpretation of Section 171 of the Act, 2017, once any of the events contemplated in Section 171 of the Act, 2017 occurs, i.e. either there is reduction in tax rate or benefit of Input Tax Credit is availed, then the price of the product must be adjusted to (a) the extent of the tax reduced and/or (b) the extent of increase in the credit availability.

W.P.(C) 7743/2019 & other connected matters Page 74 of 142 Original MRP Price exclusive of 28% GST 18% GST Ideal revised MRP MRP suggested by Respondent 5 3.90625/- 0.703125/- 4.609375/- 4.5/- 4 3.125/- 0.5625/- 3.6874/- 3.5/- 3 2.34375/- 0.421875/- 2.765625/- 3/- 2 1.5625/- 0.28125/- 1.84375/- 2/- 22. Therefore, according to him, there is a legal impossibility in reducing the Maximum Retail Price (‘MRP’). As a result he stated that some of the companies had passed on the commensurate benefit by way of increasing the grammage. He pointed out that NAA vide order dated 24 th December, 2018 passed in Ankit Kumar Bajoria vs. M/s Hindustan Unilever Ltd., Case No.20/2018, had accepted the practice of increasing grammage. However, this practice had not been accepted as a mode of passing on commensurate benefit by NAA in subsequent orders. 23. Learned counsel for the petitioners pointed out that there is no provision of appeal against the orders passed by NAA. They submitted that the absence of a provision to appeal means that there is no judicial oversight over the decisions of NAA and indicates that there is a presumption that the findings of NAA are infallible. They submitted that Tribunals and Authorities which exercise functions similar to NAA have a robust appellate mechanism. They submitted that lack of a provision to appeal against the findings of NAA makes the Act, 2017 unconstitutional. 24. They submitted that Rule 124 of Rules, 2017 to the extent it deals with appointment and terms and conditions of service of the Chairman and Members

W.P.(C) 7743/2019 & other connected matters Page 75 of 142 of NAA is not in consonance with Article 50 of the Constitution of India as there is scope for governmental interference in the functioning of NAA. 25. Learned counsel for the petitioners submitted that NAA essentially determines the rights of those complainants who filed complaints and determines liabilities of the tax assessees against whom such an application/complaint is made / received. Therefore, according to them, since the exercise of power by NAA is a quasi-judicial function, the absence of a judicial member in the constitution of NAA renders Section 171 of the Act, 2017 and Rule 122 of the Rules, 2017 illegal and void.

CCE 2015 (326) E.L.T. 209 (SC). 30. They stated that the petitioners have been issued show cause notices directing them to explain why penalty prescribed under Section 171(3A) of the Act, 2017 read with Rule 133 (3) (d) of the Rules, 2017 should not be imposed upon them. They, however, submitted that Section 171 (3A) has been inserted in the Act, 2017 under Section 112 of the Finance Act, 2019 which came into force only from 01st January, 2020 and so penalty under the aforesaid Section could not have been imposed on the petitioners retrospectively. 31. Learned senior counsel for the petitioner in W.P.(C) 1171/2020 submitted that on a plain reading of Section 171(1) with Section 2(108) of the Act, 2017, it is clear that it applies to a reduction in the rate of Goods and Services Tax levied on a particular commodity or a grant of Input Tax Credit under the Act, 2017.

Operative decision and relief

However, the remedy for the same is to set aside such orders on merits. What will be struck down in such cases will not be the provision itself which invests such power on the concerned authority but the erroneous application of the power.

Ratio and legal principle

The narrow proposition associated with Reckitt Benckiser India Private Limited v. Union of India and Others concerns issue and context: w.p.(c) 7743/2019 & other connected matters $~ * in the high court of delhi at new delhi + w.p.(c) 7743/2019 reckitt benckiser india private limited ..... petitioner through: mr. p. chidambaram, senior advocate with mr. r. jawahar lal, mr. siddharth bawa mr. anuj garg, mr. mohit sharma and ms. harshita advocates. mr.amar dave, amicus curiae with mr. vikramaditya bhaskar, advocate. versus union of india through: its secretary & ors. ..... respondents through: mr. zoheb hossain, sanjeev menon, mr.vivek gurnani, mr. kavish garach, ms. abhipriya, mr.vivek gaurav, ms.sejal aneja and ms.manisha, advocates for naa and dgap. mr.asheesh jain, cgsc with mr. gaurav kumar advocate for r-1 mr.farman ali, advocate with ms.usha and mr.krishan kumar, advocates for r-2 & 3 + w.p.(c) 10999/2018 m/s pyramid infratech private limited ..... petitioner through: mr.abhishek a rastogi, ms.… The proposition cannot be separated from the judgment’s facts, the governing statutory version, the forum’s jurisdiction, and the exact relief recorded in W.P.(C) 7743/2019.

For working-paper purposes, the decision should be cited only after matching the material facts and reading the passages under the judgment-grounded record above. The editorial outcome label “Disposed” is a navigation aid; it does not replace the operative order or explain every issue in a multi-issue case.

Why this judgment matters

This decision is relevant when a file raises the same central question identified in the source headnote: Issue and context: W.P.(C) 7743/2019 & other connected matters $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7743/2019 RECKITT BENCKISER INDIA PRIVATE LIMITED ..... Petitioner Through: Mr. P. Chidambaram, Senior Advocate with Mr. R. Jawahar Lal, Mr. Siddharth Bawa Mr. Anuj Garg, Mr. Mohit Sharma and Ms. Harshita Advocates. Mr.Amar Dave, Amicus Curiae with Mr. Vikramaditya Bhaskar, Advocate. versus UNION OF INDIA THROUGH: ITS SECRETARY & ORS. ..... Respondents Through: Mr. Zoheb Hossain, Sanjeev Menon, Mr.Vivek Gurnani, Mr. Kavish Garach, Ms. Abhipriya, Mr.Vivek Gaurav, Ms.Sejal Aneja and Ms.Manisha, Advocates for NAA and DGAP. Mr.Asheesh Jain, CGSC with Mr. Gaurav Kumar Advocate for R-1 Mr.Farman Ali, Advocate with Ms.Usha and Mr.Krishan Kumar, Advocates for R-2 & 3 + W.P.(C) 10999/2018 M/S PYRAMID INFRATECH PRIVATE LIMITED ..... Petitioner Through: Mr.Abhishek A Rastogi, Ms.… Its practical value lies in the way the Delhi High Court connected the governing provisions—GST statutory provision - Section 2(108); GST statutory provision - Section 2(62); GST statutory provision - Section 2(80); GST statutory provision - Section 4(1); GST statutory provision - Section 9; GST statutory provision - Section 9A; GST statutory provision - Section 14; GST statutory provision - Section 15; GST statutory provision - Section 19(3); GST statutory provision - Section 57; GST statutory provision - Section 64; GST statutory provision - Section 64A—to the procedural posture and evidence before it.

The authority level is High Court. That affects persuasive or binding weight, but authority level alone is never enough. Territorial jurisdiction, statutory period, the identity of the challenged order, and later appellate treatment must all be checked before the case is used in advice, a submission, or litigation strategy.

Practitioner action points

• Begin with the complete judgment and mark the paragraphs supporting the exact proposition relied upon.
• Match the statutory version of GST statutory provision - Section 2(108); GST statutory provision - Section 2(62); GST statutory provision - Section 2(80); GST statutory provision - Section 4(1); GST statutory provision - Section 9; GST statutory provision - Section 9A; GST statutory provision - Section 14; GST statutory provision - Section 15; GST statutory provision - Section 19(3); GST statutory provision - Section 57; GST statutory provision - Section 64; GST statutory provision - Section 64A and the decision date 2024-01-29; do not assume the current text is identical.
• Compare the notice, assessment, appeal or other procedural sequence with the chronology recorded in this case.
• Verify the stated later-history status and any review, appeal, SLP, curative or rectification proceedings before citation.
• Record why the client’s evidence is materially similar, and also record any fact capable of distinguishing the result.

Does this case match your facts?

Detailed reliance and distinction analysis

Identity check. Confirm that the cited cause title is Reckitt Benckiser India Private Limited v. Union of India and Others, the proceeding is W.P.(C) 7743/2019, and the decision is dated 2024-01-29. These fields are taken from the judgment record and should appear exactly in the citation note.

Bench check. The judgment identifies the coram as Hon'ble Acting Chief Justice; Hon'ble Mr. Justice Dinesh Kumar Sharma. A later order by another bench, a larger bench, or a higher forum may alter the weight or interpretation of the proposition.

Provision check. The source associates the dispute with GST statutory provision - Section 2(108); GST statutory provision - Section 2(62); GST statutory provision - Section 2(80); GST statutory provision - Section 4(1); GST statutory provision - Section 9; GST statutory provision - Section 9A; GST statutory provision - Section 14; GST statutory provision - Section 15; GST statutory provision - Section 19(3); GST statutory provision - Section 57; GST statutory provision - Section 64; GST statutory provision - Section 64A. The practitioner should place the historical statutory text next to the current text and identify every amendment, proviso, explanation, rule or notification that could change the analysis.

Fact check. The source issue is not a free-standing abstract rule. It arises from the concrete record summarized above. A reliable application note should list the common facts, the different facts, and whether each difference affects jurisdiction, admissibility, limitation, burden, computation or relief.

Remedy check. The recorded result is Disposed. Where a matter is remanded, set aside, partly allowed, or disposed with directions, the exact operative language is more important than a binary winner/loser label.

History check. The current closure state is REVIEW_APPEAL_SLP_SUBSEQUENT_TREATMENT_CHECK_PENDING. If that state is pending, the page does not assert that no later case exists. It means the check remains open and must be completed at the point of professional reliance.

Section / provision impact

• GST statutory provision - Section 2(108) — apply the exact version considered in the judgment.
• GST statutory provision - Section 2(62) — apply the exact version considered in the judgment.
• GST statutory provision - Section 2(80) — apply the exact version considered in the judgment.
• GST statutory provision - Section 4(1) — apply the exact version considered in the judgment.
• GST statutory provision - Section 9 — apply the exact version considered in the judgment.
• GST statutory provision - Section 9A — apply the exact version considered in the judgment.
• GST statutory provision - Section 14 — apply the exact version considered in the judgment.
• GST statutory provision - Section 15 — apply the exact version considered in the judgment.
• GST statutory provision - Section 19(3) — apply the exact version considered in the judgment.
• GST statutory provision - Section 57 — apply the exact version considered in the judgment.
• GST statutory provision - Section 64 — apply the exact version considered in the judgment.
• GST statutory provision - Section 64A — apply the exact version considered in the judgment.

Case network

• DIRECTORATE GENERAL OF GST INTELLIGENCE v. GIRISH SACHDEVA — Delhi High Court · Disposed
• M/s Technosys Integrated Solutions Pvt. Ltd. v. Union of India and Others — Delhi High Court · Disposed
• M/s Power Line Air Express v. Principal Commissioner of CGST and Others — Delhi High Court · Disposed
• CGST, Delhi West v. Vishal Goyal — Delhi High Court · Disposed

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