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2023-TIOL-1735-HC-GUW-GST
Pepsico India Holdings Pvt Ltd Vs UoI
GST - Allegation of wrongly availed ITC of Rs.19.51 crores - Petitioner has raised a contention that the statutory prescriptions contained in Section 61 and Section 73 of CGST Act, 2017 r/w Rule 99 of the CGST Rules, 2017 have not been adhered to and without adherence to the conditions precedent, that is, issuance of notice to the registered person in Form GST ASMT-10 to provide the noticee either to accept or not to accept the discrepancy or to furnish an explanation for the discrepancy in Form GST ASMT-11 or not to furnish any explanation, at a period of time anterior to the impugned Demand-cum-Show Cause Notice, the Proper Officer could not have assumed jurisdiction to issue the Demand-cum-Show Cause Notice under sub-section [1] of Section 73 of the CGST Act, 2017 - Petitioner further submits that prior to issuance of a show cause notice under Section 73[1] of the CGST Act, 2017 , it is mere discrepancy; that at that stage, the alleged discrepancy would only be a discrepancy simpliciter but at the stage of issuance of Demand-cum-Show Cause Notice under Section 73[1] of the CGST Act, 2017, there is formation of a prima facie opinion on the part of the Proper Officer that there is an act, which is in violation of the statutory obligation cast on the noticee; that admittedly in the case in hand, the Form GST ASMT-10 was not issued to the petitioner - Petitioner also contends that the CAG is not the Proper Officer to issue any kind of letters regarding the discrepancy.
Held: Court finds force in the contentions advanced by the petitioner that an act of issuance of the impugned Demand-cum-Show Cause Notice dated 05.09.2023 under Section 73[1] of the CGST Act, 2017 by the Proper Officer was without compliance of the mandatory conditions precedent, prescribed under the CGST Act, 2017 and the CGST Rules, 2017, more particularly, the provisions of Section 61 of the CGST Act, 2017 r/w Rule 99 of the CGST Rules, 2017 , to derive jurisdiction to issue such a Demand-cum-Show Cause Notice under Section 73[1] of the CGST Act, 2017 , impugned herein - In view of the same, it is ordered that the operation of the impugned Demand-cum-Show Cause Notice bearing E-File no. GEXCOM/ADJN/GST/ADC/297/2023 dated 05.09.2023 shall remain stayed, till the returnable date - Respondent GST authorities shall file their response in the meantime: High Court [para 14 to 16]
- Interim order passed: GAUHATI HIGH COURT
2023-TIOL-1734-HC-MAD-GST
Kavin HP Gas Gramin Vitrak Vs CCT
GST - 2nd respondent issued notice dated 27.04.2022 and directed the petitioner to show cause why there was a belated claim of Input Tax Credit (ITC) and also directed to remit back the same as wrong claim of ITC and proposed to reverse the same - Contention of the petitioner is that the sales made to the petitioner and the tax collected from the petitioner were duly reported by other end supplier through their respective GSTR- 1 and the petitioner could not claim the same since Form GSTR-2 is not notified - Hence, the petitioner has accounted the purchases and credited the tax payment made through tax invoice, claimed ITC in the books of accounts and availed the same through GSTR-3B filed physically - Petitioner relied on the judgment rendered by the High Court of Punjab and Haryana in the case of Hans Raj Sons Vs. Union of India and others = 2019-TIOL-2891-HC-P&H-GST, wherein the Court has allowed the taxpayer to file the return either electronically or manually, if the portal is not opening.
Held: The petitioner had expressed real practical difficulty - The GST Council may be the appropriate authority but the respondents ought to take steps to rectify the same - Until then the respondents ought to allow the dealers to file returns manually - Therefore, following the judgments cited, this Court is inclined to quash the impugned orders and accordingly the impugned orders are quashed - The respondents shall permit the petitioner to file manual returns whenever the petitioner is claiming ITC on the outward supply / sales without paying taxes - Further the respondents are directed accept the belated returns and if the returns are otherwise in order and accordance to law, the claim of ITC may be allowed - Hence, the matter is remitted back to the authorities for reconsideration - Petition is allowed: High Court [para 11 to 13]
- Petition allowed: MADRAS HIGH COURT
2023-TIOL-1733-HC-MUM-GST
Chetankumar Jasraj Palgota HUF Vs State of Maharashtra
GST - During the course of the search, a statement of the Petitioner was recorded - The Petitioner deposited under protest a sum of Rs. 1 Crore on 25th April 2022 and 26th April 2022 - A show cause notice was thereafter issued to the Petitioner, on following which on 29th August 2022, an Order-in-Original (O-I-O) came to be passed, raising a tax demand of Rs. 7,32,73,629/- against the Petitioner for the period 2021-22 - The Petitioner's request of adjustment towards the pre-deposit under Section 107(6) to file an appeal came to be rejected by the Appellate-Authority - The Petitioner being aggrieved by such order has prayed for a direction to the Respondents to consider the deposit of Rs. 1 Crore as sufficient compliance of Section 107(6) of the CGST/MGST Act and for a further direction to accept the appeal filed by the Applicant/Petitioner - The Petitioner submits that the Respondents are not justified in retaining the same and further demanding a sum equal to 10% as pre-deposit for filing an appeal without adjusting the said deposit.
Held : Insofar as the deposit of Rs. 1 Crore on 25th April 2022 and 26th April 2022 is concerned, the said deposit has been made “under protest” as evident from the challans - On the date of the deposit, there was no demand against the Petitioner, therefore, the retention of the said amount by the Respondents is without authority of law - In the view of the Bench, the prayer made for adjustment as pre-deposit for maintainability of appeal by the Petitioner is justified and same is squarely covered by the decision of this Bench in the case of Vinod Metal (2023) 9 Centax 178 (Bom.) , wherein in a similar situation, this Court has observed that voluntary deposit made “under protest” cannot be excluded from considering it as a part of pre-deposit for filing an appeal before the Appellate Authority - There cannot be two opinions, that any procedural rule or technical requirement cannot defeat the availability of a remedy of an appeal, made available to the assessee under a substantive statutory provision nor can such remedy be rendered illusory - The interpretation of the provisions need to be made to recognise the intention of the legislature, which is to aid access to justice, which itself is a fundamental right guaranteed under the Constitution - When it comes to right of an appeal, as guaranteed by a statutory provision, such right needs to be made effective and meaningful - It cannot be frustrated by shackles of complex procedural formalities - Respondents are directed to treat sum of Rs. 1 Crore as pre-deposit for the purpose of Section 107(6) of the CGST/MGST Act and the appeal be decided on merits.- Petition disposed of: High Court [para 8, 9, 10, 12]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-1145-CESTAT-AHM
HLG Trading Vs CC
Cus - Assessee is in appeal against impugned order whereby Commissioner (A) upheld the enhancement of value of imported goods which was done by Adjudicating Authority by passing a speaking order - Adjudicating Authority enhanced the value on the basis of NIDB Data - Accordingly, value declared by appellant was enhanced - The entire basis for enhancement of value is one NIDB Data - However, said NIDB Data was not provided to appellant during Adjudication process, therefore appellant did not get opportunity to defend their case countering the NIDB Data - Moreover, appellant vehemently argued that supply is under a contract - He also referred to contract made with supplier of imported goods - It is observed that said contract was also not considered while passing the adjudication order - Therefore, there is grave violation of principles of natural justice in adjudication process and said faulty adjudication was upheld by Commissioner (A) - In the interest of principles of natural justice and fair play in adjudication, matter needs to be remitted back to Adjudicating Authority - Accordingly, impugned order is set aside and matter remanded to Adjudicating Authority for passing a fresh order after affording sufficient opportunity of hearing and making submission to the appellant: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
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