JUDGMENT : (Bhargav D. Karia, J.) 1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 30.8.2023 issued by the respondent No.1 in Form GST DRC- 01 under Sections 74(1), 122(2) and 125 of the Central Goods and Service Tax Act, 2017 (for short ‘the GST Act’) read with Rule 142(1) of the Central Goods and Service Tax Rules, 2017 (for short ‘the GST Rules’) for Financial Year 2017-18 and 2018-19 and the order in original dated 28.12.2023 passed by the respondent No.1 confirming the demand of unpaid tax on Reverse Charge Mechanism (for short ‘RCM’) on purchase of cotton from agriculturist amounting to Rs.3,73,95,300/- along with the penalty of equal amount under Section 122(2) of the GST Act. 2. Brief facts of the case are as under : 2.1 The petitioner is a partnership firm engaged into the trading and supplying of the cotton bales on wholesale basis. It is the case of the petitioner that 80% of the total turn-over is earmarked for the purpose of export. 2.2 The petitioner purchases raw cotton from the registered dealers upon upfront payment of 5% GST on the invoice price. 2.3 According to the petitioner, pursuant to the Notification No.41 of 2017 dated 23.10.2017 issued by the Ministry of Finance, Government of India, the petitioner collects tax at the rate of 0.10% on the value of goods which is exported overseas for the financial year. 2.4 The respondent No.2 issued the notice dated 22.8.2022 in Form GST ASMT-10 to clarify the discrepancies in Form GSTR-1 and Form GSTR-3B on the ground that the petitioner has purchased the cotton from unregistered suppliers/agriculturists which requires payment of GST under RCM. The petitioner, therefore, was called upon to clarify and submit the supporting documents regarding purchase like purchase ledger from registered and unregistered suppliers separately in respect of purchase of cotton. 2.5 The petitioner, by reply dated 31.8.2022 (wrongly stated as 31.5.2022 at Page No.101 of the paper-book), submitted the clarification by contending that the data was wrongly taken by the respondent of outward supply and inward supply b2b figure and has shown the difference which is unrealistic and against tax and it was pointed out that outward figures of taxable value and b2b inward taxable value cannot be compared. It was clarified that the cotton purchases from 13.10.2017 to 13.10.2018 was not liable to tax under RCM. 2.6 The respondent No.2 thereafter issued notice dated 19.10.2022 in From GST DRC-01A under Section 73(5) of the GST Act calling for the tax period Financial Year 2017-18 after considering the reply of the petitioner in response to the notice issued under Form GST ASMT-10. The petitioner was advised to pay the amount of liability ascertained of Rs.2,51,25,244/- towards non-payment of tax on the purchase of cotton from agriculturist for the period 2017-18 (15.11.2017 to 31.3.2018) as per RCM. 2.7 The respondent No.2 thereafter issued summons to the petitioner under Section 70 of the GST Act on 13.6.2023, 21.6.2023 and 30.6.2023. On 10.7.2023, the respondent No.2 issued a garnishee communication to the banker of the petitioner i.e. Bank of Baroda to restrict debit transactions in the cash credit account of the petitioner and further instructed the Bank Manager, Bank of Baroda to restrict the debit entries of all accounts operated by the petitioner under the same PAN without prior permission. 2.8 The petitioner thereafter by letter dated 19.7.2023 requested for lifting of attachment and passing of appropriate direction under Form DRC-23 as per Rule 159(5) of the GST Rules. The petitioner thereafter preferred Special Civil Application No.13291 of 2023 before this Court. This Court by order dated 3.8.2023 directed the respondent No.1 to provisionally lift the attachment over the cash credit account which came to be further extended till further orders. 2.9 The petitioner thereafter received the impugned notice dated 8.8.2023 in Form GST DRC-01A under Section 74(5) of the GST Act advising the petitioner to pay the amount of liability ascertained in the said notice amounting to Rs.3,73,95,300/- so as to close the proceedings, failing which the respondent No.1 informed the petitioner that the show cause notice shall be issued. 2.10 The respondent No.1 thereafter issued the impugned show cause notice in Form GST DRC-01 dated 30.8.2023 calling upon the petitioner to show cause as to why the amount of Rs.3,73,95,300/- towards unpaid tax under RCM of purchase of cotton from agriculturist should not be demanded and recovered under the provision of Section 74(1) of the CGST Act along with the penalty under Sections 122(2) and 125 of the Act. 2.11 Being aggrieved, the petitioner preferred this petition to quash and set aside the notice dated 30.8.2023. 2.11 Being aggrieved, the petitioner preferred this petition to quash and set aside the notice dated 30.8.2023. This Court (Coram : Honourable Mr. Justice Biren Vaishnav & Honourable Mrs. Justice Mauna M. Bhatt) by order dated 11.10.2023 issued the notice. 2.12 The petitioner thereafter preferred Civil Application No.1 of 2023 for interim relief as the respondent issued the notice for personal hearing. 2.13 It appears that thereafter the respondent No.1 passed the impugned order dated 28.12.2023 during the pendency of this petition as well as Civil Application for stay filed by the petitioner and assessed the liability of the petitioner for payment of GST amounting to Rs.3,73,95,300/- under Section 74(1) of the Act and interest under Section 50 and also imposed penalty of the same amount under Section 122(2) of the CGST Act. The respondent No.1, however, refrained from imposing penalty under Section 125 of the Act. 2.14 The petitioner, therefore, preferred the draft amendment to challenge the order dated 28.12.2023 passed by the respondent No.1, which was granted by this Court by order dated 1.5.2024. 3. Learned advocate Mr.Ashutosh Dave for the petitioner submitted that the respondent authority could not have issued the notice under Section 74(5) of the CGST Act as the earlier notice was already issued under Section 73(5) for the same issue of not paying the GST under RCM for the purchases made by the petitioner from unregistered dealers/agriculturist. 3.1 It was submitted by learned advocate for the petitioner that the petitioner did not reply to the notice in Form GST DRC-01A issued under Section 73(5) of the CGST Act. However, it was submitted that the respondent authority could not have issued the notice by invoking the provision of Section 74 as there is no fraud or misrepresentation made by the petitioner. The petitioner has filed reply to the notice dated 30.8.2023, on 1.9.2023 giving detail explanation as to why the petitioner has not paid the GST under RCM for purchases made from agriculturist. 3.2 Learned advocate Mr.Dave referred to aforesaid reply wherein it was contended that there was no mala fide intention of the petitioner to evade tax coupled with the ingredients of misrepresentation or suppression of facts. 3.2 Learned advocate Mr.Dave referred to aforesaid reply wherein it was contended that there was no mala fide intention of the petitioner to evade tax coupled with the ingredients of misrepresentation or suppression of facts. It was also pointed out to the respondents that the notice dated 19.10.20222 issued under Section 73 of the Act by the respondent No.2 is contrary to the provision of Section 73(10) of the Act as the same was beyond the period of limitation of 3 years. It was, therefore, submitted that the respondents have deliberately invoked the provision of Section 74 to avail the benefit of extended period of limitation of 5 years under the provision of Section 74 of the Act. It was, therefore, submitted that the impugned notice dated 30.8.2023 is contrary to the provision of Section 74 and liable to quash and set aside. 3.3 Learned advocate Mr.Dave further submitted that on perusal of the notice dated 30.8.2023, the same refers to Section 9(4) of the CGST Act for applying the RCM for the purchases made from the specific registered dealer only. It was submitted that the petitioner was never put to the notice of invoking the provision of Section 9(3) of the Act under which the impugned order dated 28.12.2023 is passed by the respondent No.1 determining the liability of GST under RCM for the cotton purchase made by the petitioner. 3.4 It was, therefore, submitted that the petitioner has replied to the notice dated 30.8.2023 taking into consideration the provision of Section 9(4) of the CGST Act and no contention is raised by the petitioner on merits with regard to applicability of the provision of Section 9(3) of the CGST Act. It was submitted that the respondent No.1, therefore, without giving any opportunity of hearing to the petitioner to make the submissions on the applicability of provision of Section 9(3) of the CGST Act, could not have applied the same and raised the demand under the said section giving a go-by to the provision of Section 9(4) of the CGST Act referred in the show cause notice. 3.5 It was submitted that the impugned order dated 28.12.2023 has completely changed the basis of assessment as the show cause notice is issued under the different context of applicability of the provision of Section 9(4) of the CGST Act for the purchases made from unregistered dealer and there was not a whisper about the provision of Section 9(3) of the CGST Act in the entire show cause notice. 3.6 It was further submitted by learned advocate Mr.Dave that the petitioner is exporting 80% of its product and, therefore, even if the petitioner is made liable to pay the GST under the RCM for the cotton purchased from the agriculturist, then the petitioner shall get the refund of the said amount on the goods which are exported as there is no GST on the zero rated supply under the IGST Act and, therefore, it would be a futile exercise resulting into revenue neutrality. It was, therefore, submitted that the petitioner should not be saddled with the liability of payment of GST as per the impugned order passed by the respondent No.1. It was further submitted that no penalty could have been imposed on the petitioner under Section 122(2) of the Act as there is no fraud or misrepresentation or any illegality committed by the petitioner, as the petitioner has bona fidely not paid the GST on RCM basis for the purchases made from agriculturist. 3.7 Learned advocate Mr.Dave referred to and relied upon the submissions made before the respondent No.1 in the reply to the show cause notice to justify the stand of the petitioner. It was submitted that the petitioner has also contended about revenue neutrality transaction in the reply. However, the same is not considered by the respondent No.1 in its true perspective and has passed the impugned order relying upon the provisions of Section 9(3) of the CGST Act. 3.8 Learned advocate Mr.Dave, in support of his submissions, relied upon the following decisions : (1) Siemens Limited v. State of Maharashtra & Ors., reported in (2006) 12 SCC 33 . (2) Union of India v. Vicco Laboratories, reported in (2008) taxmann.com 520 (SC). (3) Union of India v. Arviva Industries Limited, reported in (2008) 12 STT 28 (SC). (4) India Tourism Development Corporation v. Delhi Administration, reported in (2014) taxmann.com 96 (Delhi). (2) Union of India v. Vicco Laboratories, reported in (2008) taxmann.com 520 (SC). (3) Union of India v. Arviva Industries Limited, reported in (2008) 12 STT 28 (SC). (4) India Tourism Development Corporation v. Delhi Administration, reported in (2014) taxmann.com 96 (Delhi). (5) Simplex Infrastructures Limited v. Commissioner of Service Tax, Kolkata, reported in (2016) taxmann.com 97 (Calcutta). (6) Remark Flour Mills (P) Limited v. State of Gujarat, reported in (2018) 92 taxmann.com 337 (Gujarat). 4. On the other hand, learned advocate Mr.Ayaan Patel for the respondents submitted that the petitioner was given opportunity of hearing by the respondent No.1 before passing the impugned order and the petitioner has also remained present and made submissions on merits on 18.12.2023, 20.12.2023 and 22.12.2023 as recorded in the impugned order passed by the respondent No.1. Learned advocate Mr.Patel invited the attention of the Court to the notices issued in Form GST ASMT-10 as well as the notice issued in Form GST DRC-01A, wherein the petitioner was put to specific notice as to the default in making the payment of GST under RCM for purchase of the cotton from unregistered supplier/agriculturist. However, the petitioner first by letter dated 31.8.2022 did not clarify and simply submitted that the cotton purchased from 13.10.2017 to 13.10.2018 would not attract tax on RCM. 4.1 It was submitted that the respondent, after considering the reply of the petitioner, issued notice in Form GST DRC-01A under Section 73(5) for the period 2017-18 from 15.11.2017 to 31.3.2018, on 19.10.2022 wherein also the petitioner was given intimation that the petitioner had purchased the cotton from agriculturist amounting to Rs.50,25,04,893/- and the Notification No.43 of 2017 (Central Tax Rate ) dated 14.11.2017 provides that even if a registered person is purchasing ‘raw cotton’ from an agriculturist, the provision of ‘reverse charge’ under Section 9(3) of the CGST Act will be applicable. 4.2 Learned advocate Mr.Patel also referred to the summons issued under Section 70 of the CGST Act, calling upon the petitioner to explain as to why the GST is not paid in view of Notification No.43 of 2017, but the petitioner did not give any satisfactory reply and, therefore, the respondents have issued the notice dated 8.8.2023 under Section 74(5) wherein it was mentioned that though the petitioner has purchased the raw cotton from agriculturist amounting to Rs.50,25,04,893/- during the period 15.11.2017 to 31.2.2018, further verification of Form GSTR-3B was made by the respondent No.2 for the Financial Year 2018-19 and it was found that the petitioner has suppressed purchase of cotton and additional amount of Rs.24,54,01,116/- of cotton purchase was found to be made from agriculturist during Financial Year 2018-19, on which the GST on RCM basis was not paid and after considering the same, the petitioner was advised to make the payment of Rs.3,73,95,300/- on the liability ascertained under Section 74 of the CGST Act. The petitioner, however, did not respond to the said notice. Therefore, it was submitted that the respondent No.1 issued the notice dated 30.8.2023 in Form GST DRC-01 under Section 74 of the CGST Act. 4.3 It was submitted that the petitioner has challenged this notice and during the pendency of this petition, the petitioner appeared and proceeded with the hearing before the respondent No.1 and as no stay was granted by this Court, the respondent No.1 has passed the impugned order considering the submissions made by the petitioner. As to the contention of mentioning of Section 9(4) in the show cause notice, it was submitted that perusal of the show cause notice, it refers to the Notification No.43 of 2017 issued under Section 9(3) of the CGST Act and, therefore, merely mentioning of Section 9(4) in the show cause notice would not alter the situation as the petitioner is liable to pay GST on RCM basis on the goods purchased from the agriculturist under Section 9(3) of the CGST Act. It was submitted that the respondent No.1 has also reproduced the SCN as well as the reply filed by the petitioner containing the contentions which are raised before this Court and has passed the impugned order after considering the provisions of Section 74 read with Section 9(3) read with Section 50 to determine the liability of Rs.3,73,95,300/- and has also levied the penalty under Section 122(2) of the CGST Act. It was submitted that the contentions raised by the petitioner are not tenable in view of clear provision of Section 9(3) of the CGST Act. 5. Having heard the learned advocates for the respective parties and having considered the facts of the case, the petitioner has challenged the impugned order dated 28.12.20223 as the same was passed during the pendency of this petition and has proceeded to make submissions on merits in spite of the fact that the attention of the learned advocate for the petitioner was drawn to avail the alternative remedy under the provisions of Section 107 of the Act. As the impugned order was passed during the pendency of the petition where the petitioner has challenged the jurisdiction of the respondent No.1 to issue the show cause notice, the draft amendment was permitted and the petitioner was granted opportunity to make the submissions on merits, without relegating the petitioner to the alternative remedy, which would otherwise have been the normal course of proceedings. Therefore, we have considered the merits of the matter also as to whether the petitioner is liable for payment of GST on RCM basis under the provisions of the CGST Act or not, on RCM basis on the raw cotton purchased from the agriculturist. In order to consider the submissions of the learned advocates of both the sides, it would be germane to refer to the relevant provisions of the CGST Act and the Notifications which are issued by the Central Government on the basis of the recommendation of the GST council from time to time : “9. In order to consider the submissions of the learned advocates of both the sides, it would be germane to refer to the relevant provisions of the CGST Act and the Notifications which are issued by the Central Government on the basis of the recommendation of the GST council from time to time : “9. Levy and collection.— (1) Subject to the provisions of sub-section (2), there shall be levied a tax called the central goods and services tax on all intra-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 and at such rates, not exceeding twenty per cent., as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person. (2) The central tax on the supply of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel shall be levied with efiect from such date as may be notified by the Government on the recommendations of the Council. (3) The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both. (4) [The Government may, on the recommendations of the Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services or both.] (5) The Government may, on the recommendations of the Council, by notification, specify categories of services the tax on intra-State supplies of which shall be paid by the electronic commerce operator if such services are supplied through it, and all the provisions of this Act shall apply to such electronic commerce operator as if he is the supplier liable for paying the tax in relation to the supply of such services: Provided that where an electronic commerce operator does not have a physical presence in the taxable territory, any person representing such electronic commerce operator for any purpose in the taxable territory shall be liable to pay tax: Provided further that where an electronic commerce operator does not have a physical presence in the taxable territory and also he does not have a representative in the said territory, such electronic commerce operator shall appoint a person in the taxable territory for the purpose of paying tax and such person shall be liable to pay tax.’ ‘73. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any willful-misstatement or suppression of facts.— (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised for any reason, other than the reason of fraud or any wilful- misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty leviable under the provisions of this Act or the rules made thereunder.’ ‘74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful-misstatement or suppression of facts.— (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty equivalent to the tax specified in the notice. xxx xxx xxx (5) The person chargeable with tax may, before service of notice under sub-section (1), pay the amount of tax along with interest payable under section 50 and a penalty equivalent to fifteen per cent. xxx xxx xxx (5) The person chargeable with tax may, before service of notice under sub-section (1), pay the amount of tax along with interest payable under section 50 and a penalty equivalent to fifteen per cent. of such tax on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment.’ “‘Notification No.8/2017 dated 28.6.2017 G.S.R. (E).- In exercise of the powers conferred by sub- section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts intra-State supplies of goods or services or both received by a registered person from any supplier, who is not registered, from the whole of the central tax leviable thereon under sub- section (4) of section 9 of the Central Goods and Services Tax Act, 2017 (12 of 2017): Provided that the said exemption shall not be applicable where the aggregate value of such supplies of goods or service or both received by a registered person from any or all the suppliers, who is or are not registered, exceeds five thousand rupees in a day.’ ‘Notification No.38/2017 dated 13.10.2017 G.S.R. (E).- In exercise of the powers conferred by sub- section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby makes the following amendment in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), No.8/2017- Central Tax (Rate), dated the 28th June, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 680(E), dated the 28th June, 2017, namely:- In the said notification, the proviso under Paragraph 1 shall be omitted. 2. The exemption contained in the notification No. 8/2017- Central Tax (Rate) dated the 28th June, 2017 as amended by this notification shall apply to all registered persons till the 31st day of March, 2018.’ ‘Notification No.4/2017 dated 28.6.2017 G.S.R. (E). 2. The exemption contained in the notification No. 8/2017- Central Tax (Rate) dated the 28th June, 2017 as amended by this notification shall apply to all registered persons till the 31st day of March, 2018.’ ‘Notification No.4/2017 dated 28.6.2017 G.S.R. (E). In exercise of the powers conferred by sub-section (3) of section 9 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby specifies the supply of goods, the description of which is specified in column (3) of the Table below and falling under the tarifi item, sub-heading, heading or Chapter, as the case may be, as specified in the corresponding entry in column (2) of the said Table, made by the person as specified in the corresponding entry in column (4), in respect of which the central tax shall be paid on reverse charge basis by the recipient of the intra- state supply of such goods as specified in the corresponding entry in column (5) and all the provisions of the said Act shall apply to such recipient, namely:-’ ‘Notification No.43/2017 dated 14.11.2017 G.S.R. (E).- In exercise of the powers conferred by sub- section (3) of section 9 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby makes the following amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No.4/2017- Central Tax (Rate), dated the 28th June, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub- section (i), vide number G.S.R. 676 (E), dated the 28th June, 2017, namely:- In the said notification, in the TABLE:- (i) after Sl. No.4 and the entries relating thereto, the following serial number and the entries shall be inserted, namely:- “4A 5201 Raw cotton Agriculturist Any registered person. 2. This notification shall come into force with effect from the 15th day of November, 2017.’” 6. On perusal of the above provisions as well as the Notifications issued from time to time, more particularly under Section 9(3) of the CGST Act, the registered dealer, who purchases raw cotton falling in Tariff Item 5201 from an agriculturist, is liable to pay the GST on RCM with effect from 15.11.2017. On perusal of the above provisions as well as the Notifications issued from time to time, more particularly under Section 9(3) of the CGST Act, the registered dealer, who purchases raw cotton falling in Tariff Item 5201 from an agriculturist, is liable to pay the GST on RCM with effect from 15.11.2017. The petitioner, who is dealing in purchase and sale of the cotton and is exporting 80% of the cotton, is liable to pay the GST on RCM basis on raw cotton purchased from agriculturist on RCM basis in view of the Notification No.43 of 2017 dated 14.11.2017. 7. The contention raised on behalf of the petitioner that the petitioner is not liable to pay the GST would be contrary on face of the notification issued under Section 9(3) of the CGST Act. By Notification No.43 of 2017 dated 14.11.2017, Entry No.4A is inserted in the Table of the Notification No.4 of 2017, whereby the registered person is made liable to pay the GST on RCM under Section 9(3) on the various description of supply of goods defining the supplier of goods and the liability of the person to pay the GST on RCM. 8. In view of the above provisions of law, when the respondent No.1 has issued the notice since 2022 pointing out to the petitioner that the petitioner is liable to pay the GST on RCM on the raw cotton purchased from agriculturist, the petitioner has not shown any willingness nor has given any reply except raising the technical pleas in response to the impugned show cause notice dated 30.8.2023 by reply dated 1.9.2023. The respondent No.1 has considered the reply of the petitioner in detail and thereafter, has come to the conclusion relying upon the aforesaid Notification No.43 of 2017 issued under Section 9(3) of the CGST Act that the petitioner is liable to pay the GST under RCM on the raw cotton purchased from the agriculturist. 9. The respondent No.1 has considered the reply of the petitioner in detail and thereafter, has come to the conclusion relying upon the aforesaid Notification No.43 of 2017 issued under Section 9(3) of the CGST Act that the petitioner is liable to pay the GST under RCM on the raw cotton purchased from the agriculturist. 9. The contention raised on behalf of the petitioner that the first the notice was issued under Section 73 of the Act and later on, the notice was issued under Section 74 of the Act is concerned, the same is not tenable because if the notice in Form GST DRC-01A issued under Section 73 and notice issued under Section 74 are compared, the respondent authorities have found out further suppression on part of the petitioner with regard to non-payment of GST on RCM basis for the Financial Year 2018-19. It is pertinent to note that no show cause notice in Form GST DRC-01 was issued under Section 73 of the Act and only the impugned show cause notice is issued under Section 74 of the Act and as there is suppression on part of the petitioner - assessee, the respondent authority gets an extended period of 5 years for initiating action for assessment. 10. On perusal of the show cause notice in Form GST DRC- 01 as well as the impugned order is concerned, both refers to the Notification No.43 of 2017 which was issued under Section 9(3) of the CGST Act and, therefore, mentioning the Section 9(4) in the notice would not make the notice illegal. The petitioner was made aware that the petitioner is liable to pay the GST under RCM on the basis of the Notification No.43 of 2017 which is issued under Section 9(3) of the CGST Act and, therefore, the contention of the petitioner that the notice and the order are passed under different Sections 9(3) and 9(4) cannot be accepted. 11. The petitioner was made aware that the petitioner is liable to pay the GST under RCM on the basis of the Notification No.43 of 2017 which is issued under Section 9(3) of the CGST Act and, therefore, the contention of the petitioner that the notice and the order are passed under different Sections 9(3) and 9(4) cannot be accepted. 11. On perusal of Section 9(3) of the CGST Act, the same applies for payment of GST on RCM wherein the Government, on recommendation of the Council by notification, has specified the categories of supply of goods or services or both, the tax on which GST is to be paid on reverse charge basis by the recipient of such goods or services or both and the provisions of the Act to apply to such recipient as if he is the person liable for paying the tax. Whereas sub-section (4) of Section 9 refers to the issuance of the Notification by the Government on recommendation of council specifying a class of registered person who in respect of the supply of specified category of goods or services or both, received from unregistered supplier, is liable to pay tax on ‘reverse charge’ basis. Therefore, when the petitioner has admittedly purchased the raw cotton which is a specific category of supply of goods from the agriculturist, the provision of Section 9(3) is applicable as per Notification No.43 of 2017 with effect from 15.11.2017. Therefore, the contention raised on behalf of petitioner that the petitioner is not liable to pay the GST on RCM basis in absence of any notification under Section 9(4) is not tenable because the petitioner is liable to pay tax on RCM basis as per provision of Section 9(3) of the CGST Act. 12. On perusal of the impugned notice, the respondent has made reference to Section 9(4) of the CGST Act. Therefore, it was contended by the petitioner that the case of the petitioner is covered by RCM as per Section 9(4) of the CGST Act and not as per Section 9(3) of the CGST Act. Such contention of the petitioner is also not tenable as the respondent has also referred to Notification No.43 of 2017 dated 28.6.2017 which pertains to Section 9(3) of the CGST Act. Such contention of the petitioner is also not tenable as the respondent has also referred to Notification No.43 of 2017 dated 28.6.2017 which pertains to Section 9(3) of the CGST Act. Therefore, merely mentioning Section 9(4) instead of Section 9(3) of the CGST Act would not vitiate the show cause notice in any manner, as submitted by the petitioner. 13. The contention of the petitioner that the entire exercise would be a revenue neutral, cannot accepted as the petitioner is not 100% EOU but is also only exporting 80% of its product and, therefore, payment of IGST on the export and getting refund of the same by the petitioner under the provisions of the IGST read with Section 54 of the CGST Act cannot absolve the petitioner from the liability to pay GST on RCM basis under Section 9(3) of the CGST Act which is a charging section. Therefore, the submission made on behalf of the petitioner is not acceptable. 14. Reliance placed by the petitioner on the decision of the Hon’ble Apex Court in the case of Siemens Limited (supra) with regard to maintainability of petition under Article 226 of the Constitution of India as we have already entertained the petition and are deciding the same on merits, the said decision is already complied with. Similarly, decision of the Hon’ble Apex Court in the case of Arviva Industries Limited (supra), the same was in context of binding circular No.39/1999 dated 25.6.1999 extending the benefit of brand rate of drawbacks to compensate exporters for re-rolled steel products and processed fabrics, wherein it is held by the Hon’ble Apex Court that the circulars issued by the Board are binding on the department. 15. The decision of the Hon’ble Delhi High Court in the case of India Tourism Development Corporation (supra) is concerned, the same was pertaining to Section 11A of the Central Excise Act, 1944 read with Section 73 of the Finance Act, 1994, wherein the recovery of the duty of the tax not levied/paid or short paid or erroneously refunded, the scope of show cause notice was examined and in such cases, it was held by the Delhi High Court that the authority has no power to review its order and cannot issue a second show cause notice on same matter for same period. In the facts of the case, there is no second notice was issued by the respondent authorities and only the intimation was issued under Form GST DRC-01A under Section 73 and after further investigation, when it was found that the petitioner has made suppression with regard to non-payment of GST on the raw cotton purchased from the agriculturist for the Financial Year 2018-19, the respondent authorities invoked the jurisdiction under Section 74 of the CGST Act and only one notice which is impugned in these proceedings was issued under Section 74 of the CGST Act on 30.8.2023 and, therefore, the reliance placed on the aforesaid decision would not be helpful to the petitioner in the facts of the case. 16. Reliance placed on the decision of this Court in the case of Remark Flour Mills (P) Limited (supra) is concerned, it was in relation to the invocation of Section 83 as well as second show cause notice which is already considered herein-above. 17. With regard to penalty levied under Section 122(2) of the Act is concerned, the respondent authorities have given cogent reasons for the same and, therefore, no interference is called for, more particularly when the petitioner was put to notice with regard to non-payment of GST under RCM on raw cotton purchased from the agriculturist since 2022. However, the petitioner did not consider the same to be a notice for avoiding the penalty and has invited the impugned order and, therefore, it is rightly believed by the respondent No.1 that the petitioner has deliberately not paid the GST on RCM on the raw cotton purchased from the agriculturist contrary to the Notification No.43 of 2017 issued under Section 9(3) of the CGST Act and, therefore, no interference is required to be made for imposition of penalty by the impugned order. 18. In view of the foregoing reasons, no interference is called for in the impugned order passed by the respondent No.1 fastening the liability of amounting to Rs.3,73,95,300/- along with the penalty of equal amount under Section 122(2) of the GST Act upon the petitioner for non-payment of GST on RCM for the raw cotton purchased by the petitioner from 15.11.2017 onwards for the period for which the impugned order is passed. The petition, therefore, being devoid of any merits, is accordingly dismissed with no order as to costs. Notice is discharged. 19. The petition, therefore, being devoid of any merits, is accordingly dismissed with no order as to costs. Notice is discharged. 19. Consequently, Civil Application No.1 of 2023 also stands disposed of.