Sec 164 – Power of Government to make rules

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Sec 164 – Power of Government to make rules 2017-04-14T02:09:55+00:00

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  • Miloni ShahMiloni Shah
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    (1) The Government may, on the recommendations of the Council, by notification, make rules for carrying out the provisions of this Act.
    (2) Without prejudice to the generality of the provisions of sub-section (1), the Government may make rules for all or any of the matters which by this Act are required to be, or may be, prescribed or in respect of which provisions are to be or may be made by rules.
    (3) The power to make rules conferred by this section shall include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Act come into force.
    (4) Any rules made under sub-section (1) or sub-section (2) may provide that a contravention thereof shall be liable to a penalty not exceeding ten thousand rupees.

    Priya MadrechaPriya Madrecha
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    164.1 Introduction
    This is delegation of legislation to the administrative authority, which has become a regular practice and standard feature of modern legislation. This has to be read with the other Section 165 regarding regulations. While under this Section the Government is given the power to make rules, under Section 165 power to make regulation is given to the Board and Commissioner of SGST. There is a general power under sub-section (1) and specific power under sub-section (2) which is also a standard structure. 164.2  Analysis
    The reason for the delegation of legislation is that the Legislature cannot take care of all aspects of creating law, due to the enormous responsibility and also that it is better to leave it to the bureaucracy to fill in the gaps, after laying down general principles.
    Two important principles are:
    a)    The essential legislative function i.e., laying down the policy, has to be carried out by the legislature and only lesser aspects can be left to the administration.
    b)    The legislative policy behind the areas where it is delegated must be known from the legislation itself, so that the administrative authority remains within bounds while making the rules.
    It is part of the separation of powers that legislative power is exercised by the legislature and executive only administers it. Delegation requires superintendence of the legislature. Although all though express supervisory provisions are not contained in this Section, the boundaries of delegation must be identified by the limits set from the words used to describe the topics on which rules (or regulations) are to be notified.
    The general rule making power is granted to the Central and State Governments. The rule making power is subject to a procedural limitation that it can be made only when there is a recommendation by the Council. Such rule making power also includes power to issue notifications with retrospective effect under the rules.
    General powers to carry into effect the purposes of this Act are provided by vesting the appropriate Government with the rule making power to fill in the gaps with expression “as may be prescribed”. This does not limit the general rule making power to carry out the purposes of the Act.
    Legislature has an inherent power to make retrospective laws but the delegated authority can make retrospective rules but not earlier that the date of commencement of this Chapter XXI.
    Finally, in order to ensure the rules are enforceable, breach of the rules are recognized as a cause for imposing penalty not exceeding Rs.25,000/-. It is interesting that a particular breach while being a breach of the specific rule attracting penalty may also be the breach of the substantive provision of law attracting penalty under Sections 73/74 of the Act.
    164.3 Comparative review
    Rule making power is an important adjunct of modern Administrative legislation. It features in Income Tax Act, Central Excise, Customs, Service Tax and Different Sales tax and other laws as well.
    164.4 Related provisions
    Statute      Section / Rule / Form      Description
    Central     Excise
    Act, 1984     Section 37. Power of Central Government to make rules.
    (1) The Central Government may make rules to carry into effect the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for specific matters.
    Chapter V of the Finance Act,
    1994     94. Power to make
    rules. –
    (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Chapter.
    7(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the specific matters stated therein.
    164.5 FAQ
    Q1. What is the purpose of making rules?
    Ans:  The principal legislation lays down policy in general. It requires specifics and details for implementation. These are taken care of by the Rules.
    164.6 MCQ
    Q1.  Whether the rules can be made with retrospective effect?
    (a)    Yes
    (b)    No
    (c)    Yes. Subject to the limitation that it cannot be made beyond the date on which the chapter comes into force
    (d)    None of the above

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