Home Case Index All Cases GST GST + HC GST - 2023 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (7) TMI 876 - HC - GSTRepetition of proceedings - Attempt to initiate fresh adjudication proceeding in respect of the self- same cause of action which has already attained finality by First Appellate Order - two show cause notices were issued for the same period for the self-same cause of action (except March, 2020) issued by two different authorities - delay in filing returns on which interest is demanded. HELD THAT:- Section 107(16) of the JGST Act provides that every 1st appellate order passed thereunder shall be final unless subjected to Revision under Section 108, appeal to Tribunal under Section 113 or appeal to High Court under Section 117 or appeal to Supreme Court under Section 118 of the JGST Act. In the instant case, since the 1st appellate order is not subjected to Section 108, Section 113, Section 117, Section 118; thus, by virtue of sub-Section (16) of Section 107, it has attained finality. The Hon’ble Apex Court in the case of CCE Vs Prince Gutkha Ltd. [2015 (7) TMI 964 - SUPREME COURT] has held that adjudicating authority dropping earlier demand accepting explanation of Assessee, issuance of second show cause notice on same cause of action, not permissible. In the case of COMMR. OF C. EX., VADODARA VERSUS GUJARAT STATE FERTILIZERS & CHEM. LTD. [2008 (7) TMI 61 - SUPREME COURT] it is held by the Hon’ble Apex Court that order of the Tribunal has attained finality due to non-filing of appeal by the department. Hence, appeal on the same issue is not maintainable which has already attained finality. The Respondents in the instant case being not aggrieved by the First Appellate Order dated 16-01-2021, did not challenge the same or availed remedies available under the law but accepted the same and allowed the same to attain finality; thus now they cannot be allowed to turn around and re-agitate a matter afresh which has already come to an end by due process of law. Having regard to the discussions made, the Revenue cannot re-agitate and issue fresh show cause notices again for the same cause of action covering same period against which the Order passed by the first Appellate Authority has been accepted by the Respondents and same has attained finality. The actions of the Respondent No.2 and the Respondent No.3 is therefore bad in law and is without jurisdiction and is further hit by the principles of res judicata and is clearly not permissible under the law. As stated herein above, after passing of the 1st appellate order, only course available with the Respondents were to challenge the first Appellate Order dated 16-01-2021 before the Appellate Tribunal under Section 112 of the JGST Act, if at all aggrieved, and therefore, the impugned Show Cause Notices are wholly without jurisdiction, without authority of law and also barred by principles of res-judicata. Demand of interest with respect of March, 2020 - HELD THAT:- The demand of interest of Rs.6,63,025/- in the impugned first Show Cause Notice dated 16-09-2022 (Annexure-1) is also erroneous and is contrary to State GST Notification No.451 dated 29-07-2017 as amended by Notification No.31/2020-State Tax dated 25-06-2020 and corresponding Central GST Notification No.13/2017-Central Tax dated 28-06-2017 as amended by Notification No.31/2020-CT dated 03-04-2020. As per Notification No.31/2020-State Tax dated 25-06-2020 and Notification No.31/2020-CT dated 03-04-2020 as a COVID-19 relaxation Measures, the rate of interest for the month of February, 2020 to April, 2020 was reduced to Nil for first 15 days of delay and 9% thereafter in place of 18%, for registered persons having annual turnover above Rs.5.00 Cr. Since the annual turnover of the Petitioner is above Rs.5.00 Cr.; hence, they are entitled to the benefit of said notification. Considering the extension of limitation for filing of GSTR-3B returns and reduction in the rate of interest, amount of Interest demand should have been Rs.12,791.44/- only for the month of March, 2020 as against demand of interest of Rs.6,63,026/- in the impugned Show Cause Notice dated 16-09-2022 for the month of March,2020. Thus; the petitioner is liable to pay interest of Rs.12,791.44/- only for the month of March, 2020 as against demand of interest of Rs.6,63,026/-.Thus, the petitioner is directed to pay the same amount within a period of two weeks, if not paid, from the date of receipt/production of copy of this Order. Both the impugned show-cause notices, are hereby, quashed and set-aside - Application allowed.
|