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GST - Case Laws
Showing 261 to 280 of 11421 Records
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2024 (4) TMI 278
Validity of assessment order - absence of three-month gap between the SCN and order - Attachment of bank accounts of petitioner - reasonable opportunity of hearing was provided or not - HELD THAT:- The impugned order reveals that the petitioner was provided opportunities by issuing notice in Form ASMT 10 and show cause notice in Form GST DRC-01. However, it is also clear that the petitioner did not participate in proceedings. In these circumstances, albeit by putting the petitioner on terms, the petitioner should be provided an opportunity of being heard. Solely for such reason, the impugned assessment order calls for interference.
The impugned assessment order dated 18.10.2023 is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a maximum period of two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is also permitted to submit a reply to the show cause notice. Upon receipt thereof and upon being satisfied that 10% of the disputed tax demand was received, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a period of two months from the date of receipt of the petitioner's reply.
Petition disposed off.
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2024 (4) TMI 277
Validity of assessment order - two separate proceedings were initiated in respect of the same assessment period and pertaining to the same issue - HELD THAT:- Undoubtedly, considerable confusion has been created by initiating two separate proceedings in respect of the same assessment period and in respect of the same issue. The rectification order is also unclear with regard to the reasons for rectification. Such order indicates that there is no tax liability. In these circumstances, the petitioner is entitled to another opportunity to explain the disparity between the GSTR 3B and GSTR 2A returns. However, the petitioner should be put on terms.
The impugned order is quashed subject to the condition that the petitioner remits a sum of Rs. 2 lakhs towards the disputed tax demand made therein. Such remittance shall be made within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (4) TMI 276
Validity of assessment order - no personal hearing was provided after the petitioner replied to such show cause notice and prior to the issuance of the assessment order - violation of principles of natural justice - HELD THAT:- On examining the show cause notice and the reply thereto, it is evident that the petitioner did not raise the issue relating to exemption of goods dealt with by the petitioner before the assessing officer. The assessing officer also did not take note of either Notification No.1 or Notification No.2. The impugned assessment order was issued in those facts and circumstances. While the petitioner was offered a personal hearing under show cause notice dated 14.10.2023, no personal hearing was provided after the petitioner replied to such show cause notice and prior to the issuance of the assessment order. Upon taking into account the above facts and circumstances, especially the fact that the relevant Notifications were not taken into consideration while issuing the impugned assessment order, impugned assessment order calls for interference.
The impugned assessment order dated 12.12.2023 is quashed and the matter is remanded for reconsideration. The assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a period of two months from the date of receipt of a copy of this order.
The writ petition is disposed off.
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2024 (4) TMI 275
Principles of natural justice - Gross violation of Section 75(4) of the Central Act - no order may have been passed during pendency of earlier writ petition filed by the petitioner pertaining to rectification of GSTR-I - Section 11 of the Goods and Services Tax (Compensation to States) Act, 2017 read with the provision of Central Goods and Services Tax Act, 2017 - HELD THAT:- In MAHAVEER TRADING COMPANY VERSUS DEPUTY COMMISSIONER STATE TAX AND ANOTHER [2024 (3) TMI 334 - ALLAHABAD HIGH COURT] the fact of violation of Section 75(4) of the State Act is considered. Therein, it was held that In view of the facts noted above, before any adverse order passed in an adjudication proceeding, personal hearing must be offered to the noticee. If the noticee chooses to waive that right, occasion may arise with the adjudicating authority, (in those facts), to proceed to deal with the case on merits, ex-parte. Also, another situation may exist where even after grant of such opportunity of personal hearing, the noticee fails to avail the same. Leaving such situations apart, we cannot allow a practice to arise or exist where opportunity of personal hearing may be denied to a person facing adjudication proceedings.
For the same reason, the impugned order cannot be sustained. It is set set aside. The writ petition is allowed.
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2024 (4) TMI 274
Refusal to rectify the assessment order passed under Rule 142 (5) of the C.G.S.T. Rules, 2017 - denial of the Input Tax Credit (ITC) - HELD THAT:- The law declared by the Court being retrospective and it being applicable to the assessment period in question, the issue ought to have been examined with seriousness. Similarly, merely because the assessing authority may not have been aware of the Circular of the CBIC when it passed the assessment order, it may not have refused to apply its mind to that Circular upon correction application being filed. Primarily, the decision of the Court being law declared and the Circular being the binding direction to apply the law, an order passed contrary to such law or direction to apply the law would remain an order that may have experienced an error apparent on the face of record - the approach of the assessing authority is found to be erroneous.
The matter is remitted to the assessing authority to pass a fresh reasoned order dealing with the rectification application filed by the petitioner and keeping in mind the observations made above. Since in the earlier decision of the Court, time has been granted to the revenue and the GSTN to make compliance by 31.03.2024, let a fresh order be passed in terms of this order by 15.04.2024.
Petition disposed off by way of remand.
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2024 (4) TMI 273
Violation of principles of natural justice - challenge to assessment orders - Attachment of Bank Accounts of petitioner - HELD THAT:- The assessment orders were issued on 31.07.2023, but the petitioner has approached this Court in late February 2024 after the bank accounts of the petitioner were attached. The documents on record clearly indicate that the petitioner was negligent in not contesting the assessment proceedings until orders of attachment were issued. However, it is equally clear that the orders impugned herein were issued without hearing the petitioner. In these circumstances, solely with the view to provide an opportunity to the petitioner to contest the tax demands, interference with the impugned orders is warranted subject to putting the petitioner on terms.
Hence, the impugned assessment orders are quashed and the matters are remanded for re-consideration subject to the condition that the petitioner remits 12.5% of the disputed tax demand in each assessment order within a period of two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit a reply to the show cause notice within a period of three weeks from the date of receipt of a copy of this order.
Petition disposed off by way of remand.
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2024 (4) TMI 272
Violation of principles of natural justice - cryptic order - excess claim Input Tax Credit - under declaration of ineligible ITC - ITC claimed from cancelled dealers - return defaulters and tax nonpayers - HELD THAT:- The observation in the impugned order dated 31.12.2023 is not sustainable for the reasons that the reply filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is not satisfactory nor any substantial documents were submitted by the taxpayer which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the Petitioner.
The impugned order records the reply furnished by the Petitioner as incomplete, not supported by adequate documents, unclear and unsatisfactory. Proper Officer is directed to intimate to the petitioner if any details/documents, as may be required to be furnished by the petitioner. Pursuant to the intimation being given, petitioner shall furnish the requisite explanation and documents. Thereafter, the Proper Officer shall re-adjudicate the Show Cause Notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed under Section 75(3) of the Act.
Petition disposed off.
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2024 (4) TMI 271
Violation of principles of natural justice - SCN does not take into consideration the reply submitted by the Petitioner and is a cryptic order - under declaration of output tax - excess claim of ITC - ITC to be reversed on non-business transactions and exempt supplies - under declaration of ineligible ITC - ITC claimed from cancelled dealers, return defaulters and tax nonpayers - HELD THAT:- The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the reply dated 20.10.2023 filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is not satisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the Petitioner.
The impugned order records the reply furnished by the Petitioner is not satisfactory. Proper Officer is directed to intimate to the Petitioner details/documents, as may be required to be furnished by the Petitioner. Pursuant to the intimation being given, Petitioner shall furnish the requisite explanation and documents. Thereafter, the Proper Officer shall re-adjudicate the show cause notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed under Section 75(3) of the Act.
The challenge to Notification No. 9 of 2023 with regard to the initial extension of time is left open - Petition disposed off.
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2024 (4) TMI 270
Violation of principles of natural justice - cryptic order - excess claim Input Tax Credit - under declaration of ineligible ITC - ITC claimed from cancelled dealers - return defaulters and tax nonpayers - HELD THAT:- The observation in the impugned order dated 28.12.2023 is not sustainable for the reasons that the reply dated 23.10.2023 filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is not satisfactory nor any substantial documents were submitted by the taxpayer which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the Petitioner.
The impugned order records the reply furnished by the Petitioner as not satisfactory nor duly supported by adequate documents. Proper Officer is directed to intimate to the Petitioner details/documents, as maybe required to be furnished by the Petitioner. Pursuant to the intimation being given, Petitioner shall furnish the requisite explanation and documents. Thereafter, the Proper Officer shall re-adjudicate the show cause notice after giving an opportunity of personal hearing and shall pass a fresh speaking order in accordance with law within the period prescribed under Section 75(3) of the Act.
Petition disposed off.
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2024 (4) TMI 269
Violation of principles of natural justice - SCN not received as the show cause notice was not uploaded on the GST portal under the heading ‘Notices’ but appears to have been uploaded under the heading of Additional Notices - HELD THAT:- Perusal of the impugned order shows that the order does not specifically deal with any of the averments in the notice and appears to be an order passed in default on account of the petitioner neither filing a reply nor appearing for personal hearing.
In view of the above and in view of the request of the petitioner that an opportunity be given to the petitioner to file a response to the show cause notice, the impugned order dated 15.12.2023 is set aside - Petitioner is given an opportunity of filing a reply to the show cause notice within a period of 30 days from today. Thereafter the Proper Officer shall re-adjudicate the Show Cause Notice after giving an opportunity of personal hearing to the petitioner and shall pass a fresh speaking order in accordance with law within the period prescribed under Section 75 (3) of the Act.
Petition disposed off.
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2024 (4) TMI 216
Challenge to assessment order - discrepancy between the GSTR 1 statement and the GSTR 3B returns - imposition of 100% penalty by invoking Section 74 of the Tamil Nadu Goods and Services Tax Act, 2017 - HELD THAT:- On perusal of the impugned order, it is evident that the tax liability was arrived at by noticing the discrepancy between the GSTR 7 and 1 returns, on the one hand, and the GSTR 3B returns on the other. Penalty has been imposed at 100% of the tax dues by invoking Section 74. It is also noticeable that the petitioner remitted a sum of Rs. 3,00,000/- on 12.04.2023, which is prior to the date of issuance of the impugned order. This sum represents about 10% of the total tax dues. The petitioner has agreed to remit a further sum of Rs. 3,00,000/-, which would aggregate to about 20% of the tax dues. In the overall facts and circumstances, since the petitioner was not heard before the impugned order was issued, the interest of justice warrants the provision of an opportunity to the petitioner.
The impugned order dated 19.04.2023 is set aside subject to the condition that the petitioner remits an additional sum of Rs. 3,00,000/- towards the tax demand within three weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (4) TMI 215
Validity of extension of time limit for issuance of SCN under GST Act - Validity of N/N. 09/2023-CT dated 31.03.2023 - Notification challenged on the ground that the conditions precedent provided in explanation to Section 168(A) was not present on the date when the notification was issued - HELD THAT:- As final order has already been passed and taking note of the fact that similar issues are being examined by various Courts of the Country, the Court is inclined to provide that till further orders of the Court, the recovery of the amount assessed against the petitioner shall not be enforced.
List on 10. 05. 2024.
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2024 (4) TMI 214
Violation of principles of natural justice - the impugned order does not take into consideration the reply submitted by the petitioner and is a cryptic order - under declaration of output tax - excess claim Input Tax Credit [ITC] - ITC claimed from cancelled dealers - returns defaulters and Tax non-payers - HELD THAT:- The observation in the impugned order dated 30.12.2023 is not sustainable for the reasons that the reply filed by the petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was unsatisfactory, incomplete and not duly supported by adequate documents. He merely held that the reply is not duly supported by adequate documents, clear and unsatisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.
Further, if the Proper Officer was of the view that the reply is not clear and unsatisfactory and if any further details were required, the same could have been specifically sought from the petitioner. However, the record does not reflect that any such opportunity was given to the petitioner to clarify its reply or furnish further documents/details.
The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 30.12.2023 is set aside - Petition allowed by way of remand.
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2024 (4) TMI 213
Retrospective cancellation of GST registration of petitioner - notice does not specify any cogent reason - principles of natural justice - HELD THAT:- The SCN and the impugned orders are bereft of any details and accordingly the same cannot be sustained. Neither the Show Cause Notice, nor the orders spell out the reasons for retrospective cancellation - SCN also does not put the petitioner to notice that the registration is liable to be cancelled retrospectively. Accordingly, the petitioner had no opportunity to even object to the retrospective cancellation of the registration.
In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention is required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
The SCN dated 29.09.2022 and impugned orders dated 13.10.2022 and 11.10.2023 cannot be sustained and are accordingly set aside - GST registration of the petitioner is restored - Application disposed off.
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2024 (4) TMI 212
Cancellation of registration of Firm - failure to furnish the returns for a continuous period of six months - seeking to avail the option under section 30 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The primary object behind the GST Act is levy and collection of tax on intra State supply of goods or services and the matters connected therewith or incidental thereto. Now the cancellation of registration shall ensue serious civil consequences for the petitioner and his entire business shall come to a standstill. The provisions under sections 30, 45, 46, 47 etc. are intended at providing opportunity to the defaulter Firm so as the Firm continues its business.
Therefore, a liberal approach is required to be taken in the matters like the present proceeding notwithstanding the period prescribed under section 30 of the GST Act having been lapsed. Having thus examined the materials on record, it is opined that a permission to the petitioner to file an application under section 30 of GST Act can be granted subject to the petitioner making payment of statutory penalty/fine, if any, for moving the application under section 30 of the GST Act.
The present writ petition succeeds to the extent that the petitioner may file an application under section 30 of the GST Act within a period of 30 days and the period of limitation shall be counted from the date of this order.
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2024 (4) TMI 211
Violation of principles of natural justice - mandatory SCN was not served - provisional attachment of property - HELD THAT:- The Central Board of Indirect Taxes and Customs has issued Master Circular No. 1053/2/2017-CX setting out detailed guidelines for the authorities under the Act as to how a show cause notice under Section 11A of Central Excise Act, 1944/ Section 73 of the Chapter V of the Finance Act, 1994 should be issued. In accordance with Section 6 thereof and Section 27 of the Bihar and Orissa General Clauses Act, 1917, the said circular will apply in the case of issuance of show cause notice under the Act - It further transpires from record that an admission in the hands of the answering deponent has been made to the effect that no opportunity of hearing was extended to the Petitioner. It is a settled proposition of law that any proceeding which has civil and penal consequences, principle of natural justice has to be read into before issuing a final order. From record it appears that the order impugned is dated 14.07.2020, which has never been served upon the petitioner in the manner prescribed under the Act and that too during the Covid-19 period.
The power to attach the bank account has to be only by way of an order passed by the Commissioner in order to protect the interest of government revenue and the cash credit account not being as asset of the petitioner, the same could not have been attached in any eventuality. The exercise of power purportedly under Section 79 is nothing else, but a misuse of power vested in the authority under the Act. The respondents have failed to say and satisfy as to how the authority of law has been followed and when the petitioner has never been extended any opportunity of hearing before passing of the order complained of, nor have been communicated before attachment of the bank account.
Now it is a settled principle of law that any authority has to follow the principle of natural justice and in the instant case the alleged show cause notice in terms of DRC-01 has been issued under Rule 142 of JGST Rule 2017, demanding tax, interest and penalty. However, from record it would transpire that the summary show cause notice in terms of Rule 142 (1) has not been complied with which is mandatory under Section 73/74 of JGST Act 2017.
It is clear from the plain language of Section 83(2) of the CGST Act that the operation of an order provisionally attaching the bank account would cease to be operative after the expiry of the statutory period of one year. As stated hereinabove at best only the interest can be recovered from the petitioner for delay filing of return but demand of the entire amount is illegal and liable to be quashed and set aside.
The impugned order/notice dated 14.07.2020 and subsequent GST DRC-07 dated 16.07.2020, are hereby, quashed and set aside. Consequently, the letter of attachment/ freezing bank account of the petitioner being account no. 07180500010245 with the UCO Bank, Tata Kandra Rd. Dist. Saraikela-Kharsawa, Jharkhand, is also quashed - matter is remitted back to the Adjudicating Authority to issue statutory notice to the petitioner and pass a fresh order with respect to interest after verifying the records after following due process of law strictly in accordance with the provisions of the Act.
Application allowed.
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2024 (4) TMI 210
Violation of principles of natural justice - deprivation of the right of personal hearing or not - notices for personal hearing not served - technical glitch - HELD THAT:- It appears to be a case where because of technicalities, the notices for personal hearing seems to have not been served upon the petitioner and he has not been provided with a fair opportunity of personal hearing.
The Order-in-Original dated 28.11.2023, to the aforesaid extent deserves to be set aside and it is ordered accordingly. However, the impugned order is interfered with only on the ground of it being violative of principles of natural justice. The petitioner is directed to enter appearance before the authorities concerned on 07.03.2024 for personal hearing. Thereafter, the authorities concerned shall proceed further and pass appropriate fresh order in accordance with law. It is made clear that there shall be no necessity for issuance of any further notice in this regard to the petitioner by the Department.
Petition allowed.
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2024 (4) TMI 161
Validity of the Order-in-Original - Adjudication of show cause notice - adjudication was not fair - No opportunity to raise preliminary objections - prayer for amendment of the Petition for incorporating the additional prayer - HELD THAT:- We are of the clear opinion that there is much substance in the contentions as urged on behalf of the Petitioner that the adjudicating officer ought to have granted an opportunity to the Petitioner to raise all contentions in the course of adjudication in the event he intended to decide the Show Cause Notice and not the preliminary objections. In such situation, the Petitioner could not have been taken unaware of the intentions of the adjudicating officer. There cannot to be any vagueness in the course of quasi-judicial adjudication and by taking a party by surprise on what would be actually adjudicated, more particularly, when there was a High Court Order.
To undertake a quasi-judicial adjudication is a solemn exercise which needs to be fulfilled with fairness and having all attributes of judicial adjudication. We may observe that the Order dated 1st December, 2023 passed by this Court was clear to the effect that, on 5th December, 2023, the Petitioner would raise before the adjudicating officer its preliminary objections, it was such issue which was expected to be decided.
Significantly, on the backdrop of the Court’s Order dated 1st December, 2023, the Petitioner was not put to a specific notice that, apart from the preliminary objections, the show cause notice itself would be taken up for consideration and would be decided. The hearing on the preliminary objections took place on 5th December, 2023, sans a faintest idea to the Petitioner that a final order on the show cause notice would be passed. Further, no opportunity to place on record the relevant documents was granted to the Petitioner, nor the same could be raised for want of the Petitioner’s knowledge that the show cause notice itself is being taken up for decision much less on the ground, that the show cause notice needs to be decided by 31st December, 2023, failing which, it would be barred by limitation.
Considering the well settled principles of law in regard to quasi-judicial adjudication necessarily a fair and proper opportunity was required to be made available to the Petitioner and a clear notice, that final adjudication on the Show Cause Notice was to be held, should have been provided.
Thus, we are of the opinion that the impugned Order-in-Original deserves to be quashed and set aside and the proceedings remanded to the adjudicating officer for deciding all the issues, including the preliminary objections, by a fresh order to be passed.
Ordered accordingly. Petition stands disposed of in the aforesaid terms.
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2024 (4) TMI 160
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - excess claim Input Tax Credit - under declaration of ineligible ITC - ITC claimed from cancelled dealers - return defaulters and tax nonpayers - HELD THAT:- The observation in the impugned order dated 28.12.2023 is not sustainable for the reasons that the reply filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion whether the reply was unsatisfactory. He merely held that the reply is not satisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner.
Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details - the order cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 28.12.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication.
Petition disposed off.
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2024 (4) TMI 159
Suspension of the GST registration - no copy of the suspension order has been received by the petitioner - GST portal is still showing the registration as suspended - incarcerated the commitments - Prayer for suspension/cancellation of the petitioner be kept on hold to enable the petitioner to complete the said supply to only BHEL - HELD THAT:- The order suspending/cancelling the GST registration of the petitioner is modified to the extent that the petitioner would be permitted to make supplies to BHEL against the pending orders. BHEL is also directed to deposit the entire amount payable to the petitioner with the CGST Faridabad, South Division.
It is clarified that deposit made by BHEL with the said GST Authorities shall be subject to further orders to be passed by this Court.
It is clarified that this order has been passed in the peculiar facts and circumstances of the case and also because supplies are to be made to a PSU-BHEL and also the fact that non-supply is likely to affect some important projects of the State.
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