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Showing 201 to 220 of 1466 Records
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2024 (6) TMI 1266
Refund of service tax - constitutional validity of Rule 10 of the Place of Provision of Service Rules, 2012 - ultra vires Section 66B read with Section 64 and Section 65B (52) and Section 66C (1) of the Finance Act, 1994 or not - levy of service tax on the services by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India - HELD THAT:- This Court by judgment and order in MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT] declared the Notification No. 8/2017 Integrated Tax (Rate) dated 28.06.2017 and the Entry No. 10 of the Notification No. 10/2017 – Integrated Tax dated 28.06.2017 as ultra vires the integrated Goods and Services Tax Act, 2017 on the ground that the same lacks legislative competency. The judgment delivered by this Court is also upheld by the Honourable Supreme Court.
This Court, in case of Sai Steel Ltd. & Ors. Vs. Union of India [2019 (9) TMI 1315 - GUJARAT HIGH COURT] held that 'The Notification Nos. 15/2017-ST and 16/2017-ST making Rule 2 (1) (d) (EEC) charge Notification No. 30/2012-ST is struck down as ultra vires Sections 64, 66B, 67 and 94 of the Finance Act, 1994; and consequently the proceedings initiated against the writ applicants by way of show cause notice and inquiries for collecting service tax from them as importers on sea transportation service in CIF contracts are hereby quashed and set aside with all consequential reliefs and benefits.'
The respondents are directed to refund service tax already paid by the petitioner pursuant to the N/N. 15/2017, which is declared ultra vires as observed in case of Sai Steel Ltd. - Petition allowed.
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2024 (6) TMI 1265
Levy of service tax - product registration fee paid by the appellants to the foreign regulatory authorities for sale of product to foreign markets - HELD THAT:- The service of approval of medicaments to be sold in those foreign countries also undertaken in the foreign country. The issue that whether statutory fees paid to the foreign regulatory authority is liable to service tax in the hands of the recipient of so called service has been decided in various judgments.
In the judgment of Sidmak Laboratories India Pvt Ltd [2023 (11) TMI 614 - CESTAT NEW DELHI] considering the identical facts and the legal issue involved in the present case, the Tribunal held that 'no service tax was payable on the amounts which the appellants had paid to US FDA to obtain their approval for export of their drugs.'
From the above decision it can be seen that the facts and legal issue involved in the present case and the case cited above are absolutely identical, therefore, the ratio of the above decision is applicable in the present case.
The demand of service tax in the present case is not sustainable - the impugned order is set aside - Appeal allowed.
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2024 (6) TMI 1264
Levy of service tax - cleaning services - services provided by the appellant to Guru Gobind Singh Super Thermal Plant under the head of cleaning services - period 16.06.2005 to 31.03.2010 - time limitation.
Levy of service tax - HELD THAT:- From the definition of cleaning activity, it is clear that the cleaning activity would cover cleaning of commercial or industrial building or premises thereof for factory, plant or machinery, tank or reservoir of such commercial or industrial building or premises - the argument of the Ld. Counsel that the thermal plant is the property of the Punjab Government and being a public utility concern no service tax is leviable, does not have the force, in view, CBEC”s circular No. 80/10/2004-ST., dated 17.09.2004.
The Tribunal in the case of M/S. B.M. CHAPALKAR AND COMPANY VERSUS COMMISSIONER OF CENTRAL EXCISE& CUSTOMS, NASHIK AND VICE-VERSA [2016 (2) TMI 844 - CESTAT MUMBAI] held that 'On perusal of agreement entered into with Nasik Tharmal Power Station, we find that the Cleaning services which were expected out of appellant is very clear that there is no doubt the appellant has been awarded contract for Cleaning of plant machinery, buildings, ete. At the same time, we also find that the contract which is awarded to the appellant, also has elements of loading and unloading of Coal, to our mind, value in respect of such loading and other activities may not be covered under the category of Cleaning Agency Services.'
The appellants are liable to pay service tax on cleaning services rendered to Guru Gobind Singh Super Thermal Plant.
Extended period of limitation - HELD THAT:- To sustain a show cause notice beyond the normal period of limitation and up to a period of five years, it has to be established that the service tax has not been paid or short-paid, by reasons of either fraud or collusion or willful misstatement or suppression of facts or contravention of any provision of the Finance Act or the Rules made there under, with intent to evade payment of tax. Further, it is found that in the present case the appellant was under a bonafide belief that service tax is not payable being services provided to the Government of Punjab and not to any commercial organization - the issue of interpretation of the legal provision is involved and therefore invocation of extended period of limitation is not warranted in the present case.
The demand of service tax only for the normal period confirmed and matter remanded back to the original authority to quantify the demand of service tax on cleaning services for the normal period along with interest; invocation of extended period of limitation is set aside. Hence, the penalty is also set aside.
Appeal allowed by way of remand.
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2024 (6) TMI 1263
CENVAT Credit - services not related to the manufacture of final products - interpretation of expression “in or in relation to manufacture of goods” - HELD THAT:- It is found that the expression “activities in or in relation to manufacture” postulates activities which are integrally connected to the manufacture of the goods.
The Hon’ble Supreme Court in M/S. COCA COLA INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2009 (8) TMI 50 - BOMBAY HIGH COURT], held 'input services used in relation to setting up, modernization, renovation or repairs of a factory will be allowed as credit, even if they are assumed as not an activity relating to business as long as they are associated directly or indirectly in relation to manufacture of final products and transportation of final products upto the place of removal.'
It is found that all the services have got a nexus to the manufacturing process and hence input credit on the same cannot be denied. The services are not used primarily for personal use or consumption of any employee in their individual capacity. Most of the amounts involved are less than Rs.10,000/-. Further, there has been a frequent change in the definition of ‘inputs’ over a period of time and hence the legal issue was complex with different interpretation given by different forums from time to time.
The issue has been decided on merits in favour of the appellant and hence the impugned order merits to be set aside - Appeal allowed.
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2024 (6) TMI 1262
Clandestine removal of goods - personal penalty of the key management personnel of the Appellant company - loose sheet glass valued not recorded in the RG-1 register - production quantity and sales quantity found to be at variance with RG-1 and RT-12 figures - HELD THAT:- The Ld. Commissioner in the impugned Order has noted that the Appellants have not furnished its response to certain facts which weigh heavily against it. Before dealing with the observations made by the Ld. Commissioner, we take note of the fact that the Appellants had duly filed its response to the four issues raised in the impugned Order and therefore the observation that the Appellants have not furnished any response on the four issues is factually incorrect.
The suppressed quantities of glass sheets clandestinely removed have been determined by estimating production based on maximum installed capacity and such maximum installed capacity has been determined based on the statement of three employees of the Appellants. The suppressed quantities alleged to be clandestinely removed have been computed by deducting such production from the figures as reported by the Appellants in its RT-12 returns during the period in dispute.
The allegation of clandestine removal and suppression of facts on the ground of non-recording of loose glass sheet at the stage of production itself miserably fails. Had the Department also not carried and agreed to the view that the RG-1 stage for loose glass sheets would be the point when such loose sheets are decided to be cleared as such, there was no need to withdraw the letter dated 01.01.1985 by a subsequent letter dated 09.09.1994 which was after the date of the search.
No evidence of unaccounted purchases of inputs have been brought on record by making enquiries from the suppliers of such material. There is no evidence of any unaccounted sales which has been brought on record by making enquiries from either the transporters or the buyers of alleged clandestinely removed glass sheets. Interestingly, the SCN notes that enquiries had been initiated against the transporters but no finding, much less an adverse finding, has been noted in the SCN. Even no unaccounted payments to the transporters have been alleged - revenue has utterly failed to discharge the burden of proof by bringing on record any evidence of any kind to substantiate the charge of clandestine removal.
Considering the very nature of the industry and the manufacturing process detailed by the Appellants, factors such as normal breakage and thickness of the glass produced have been completely ignored - it is held that maximum installed capacity determined is without any basis whatsoever and is therefore, liable to be rejected.
The impugned Order is thus set aside - appeal allowed.
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2024 (6) TMI 1261
CENVAT Credit availed on the imported goods - manufacturing activity or not - manufacture and clearance of PVC Tin Stabilizer, PVC Stabilizer, Calcium Zinc PVC Stabilizer, Oxidized Veg. Oil (Epoxy Plasricizer) - HELD THAT:- Even without deciding the issue whether the activity carried out by the appellant is amount to manufacture or otherwise. This case can be decided on other issue. It is found that the appellant have made a submission that even though there is no manufacture but the assessee has paid the excise duty, hence, the Cenvat credit on the imported goods cannot be denied.
From the judgment in AJINKYA ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2013 (6) TMI 610 - CESTAT MUMBAI] and COMMISSIONER OF CENTRAL EX. & CUS., SURAT-III VERSUS CREATIVE ENTERPRISES [2008 (7) TMI 311 - GUJARAT HIGH COURT], it can be seen that even though the activity does not amount to manufacture but if the assessee has chosen to pay the excise duty on the processed goods (whether it amount to manufacture or otherwise). The assessee cannot be denied the Cenvat credit.
In the present case, it is seen that the appellant have already paid the amount in the form of excise duty which is equivalent to Cenvat credit availed. For this reason also the payment of duty by the appellant is as good as payment of Cenvat credit availed on the imported goods. Therefore, no show cause notice was required to be issued hence, the appellant had already made good by paying the duty which is nothing but reversal of Cenvat credit taken on the imported goods. Accordingly, neither any show cause notice was required nor the consequential interest and penalties is required to be recovered.
The assessee can take the Cenvat credit even though their activity does not amount to manufacture and clear the same on payment of duty. Therefore, the entire transaction of the appellant is squarely covered by the provision of Rule 16 of Central Excise Rules, 2002 therefore, for this reasons the contention of the department that since no manufacturing activity is involved appellant is not entitled for the Cenvat credit, clearly fails on that basis. The entire proceeding of confirmation of demand, interest and penalty is not sustainable.
The impugned order is not sustainable and is set aside - appeal allowed.
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2024 (6) TMI 1260
CENVAT Credit - credit denied only on the basis of board circular 783/16/2001-CX dated 28.04.2004 - undervaluation of asset - it is alleged that the excise duty on inputs procured is charged as expenditure to ‘cost of raw material consumed’, thereby resulting in dual benefit - HELD THAT:- Form the circular, it can be seen that the circular only give a guideline to the field formation that in case of any expenditure claimed on account of Cenvat credit, the same will amount to double benefit one in Cenvat credit and other in income tax. Accordingly, the said fact may be intimated to the income tax department. It is found that the board circular does not stipulate that in such situation the Cenvat credit should be denied - even the board circular does not suggest that in such situation the availment of Cenvat credit is incorrect illegal or in contravention to any of the provision of Cenvat Credit Rules, 2004. Therefore, in these circumstances, the department could not make out any case that the appellant is not eligible for Cenvat credit.
From the decision in SHREE PANDURANG SSK LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III, [2017 (2) TMI 567 - CESTAT MUMBAI], it can be seen the case of the department was the appellant have taken the double benefit, one by taking Cenvat credit in the Cenvat account and other by capitalizing the input service whereby they can get income tax benefit. Discarding the view of the department, the Tribunal held that when the Cenvat credit was taken in conformation to the Cenvat Credit Rules, 2004 effect given in the income tax will not affect the eligibility of the Cenvat credit.
The appellant are entitled for the Cenvat Credit - the impugned order is set aside - appeal allowed.
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2024 (6) TMI 1259
Dishonour of Cheque - Jurisdiction of court - inquiry under Section 202 of the Cr.P.C. not conducted - maintainability of application under Section 239 of the Cr.P.C. - rejection of applications filed by the petitioner for production of statement of bank accounts of the respondent No. 2 - applications filed for comparison and verification of signature and Handwriting of the petitioner on disputed cheques and each of the page of agreement executed between the petitioner and respondent No. 2 rejected - cheques issued as security - merge of the charge and clubbing of all the cases.
Inquiry under Section 202 of the Cr.P.C. - HELD THAT:- The inquiry under Section 202 of the Cr.P.C. was not conducted. The remedy to file revision is available to the petitioner. However, revisions were not filed against said orders of issue process by the petitioner before Sessions Court. The applications for quashing of the complaints u/ s 482 of the Cr.P.C. are not filed. However, quashing is prayed in the writ petitions. Therefore, directly filing of writ petitions against the orders of issue process are not maintainable.
Maintainability of application under Section 239 of the Cr.P.C. - HELD THAT:- The applications filed for discharge of the petitioner are not maintainable. The said applications were rightly rejected by the Trial Court. No interference is warranted in these orders.
Application for production of statement of bank accounts of the respondent No. 2 were rejected - HELD THAT:- The petitioner has ample opportunity to lead that evidence. The Court can also compare signatures on it under Section 73 of the Indian Evidence Act. The Court expressed that it will compare signature. It is surprising to note that once issuance of cheques is admitted by the petitioner, how the signature on it can be challenged. There is no scope for interference in these well reasoned impugned orders.
Applications filed for comparison and verification of signature and Handwriting of the petitioner on disputed cheques and each of the page of agreement executed between the petitioner and respondent No. 2 rejected - HELD THAT:- It is admitted facts that cheques were issued as security. It means signatures are admitted. It is matter of evidence. Those applications were filed to support the applications filed for discharge. The discharge applications were held not maintainable as discussed above. The Trial Court held that petitioner - accused will have opportunity to lead evidence. Application is premature. Thus, petitioner can file the application of same nature after the evidence of respondent No. 2 is over, if necessary - The Trial Court has rightly exercised judicial discretion and interference is not warranted in the impugned orders. Therefore, well reasoned orders passed on those applications require no interference.
Applications filed for merge of the charge and clubbing of all the cases together rejected - HELD THAT:- The charges were not framed in those cases. In summary cases, charge cannot be framed. It is only statement of accusation to be confronted to the accused and not charge. Therefore, no question of merging of charge arises. Such applications are not maintainable. As per Section 408 of the Cr.P.C. the application must be moved before the Sessions Court for clubbing those cases. Those applications were also not maintainable before trial court.
Applications filed for dismissal of complaint for want of jurisdiction, rejected - HELD THAT:- The revisions before Sessions Court against the orders of Trial Court regarding issue of jurisdiction are to be filed. Those were not filed by the petitioner. In case of rejecting the application challenging the jurisdiction of the court to proceed with the trial, even though it may not be final in one sense, is surely not interlocutory order, substantially it is a final order - The writ petitions are not maintainable against the said orders. In case of Ahuja Dongre relied upon by the petitioner, the revision was filed before the Sessions Court and that Judgment was challenged. In this case, revision is not filed. Thus, it is not helpful to the petitioner. The revision is not filed. Therefore, case of Sayed Mohammed, cited supra by the petitioner is not relied upon.
The applications for interim compensation in each case were granted by the Trial Court. All these orders granting interim compensation passed u/s 143-A of the N.I. Act are well reasoned. There is no any illegality and perversity to interfere in it. The revisions were not preferred against those orders u/s 397 Cr.P.C. Therefore, the writ petitions are not maintainable against those orders.
The arguments of learned Advocate for petitioner are not accepted in all writs. All the writ petitions are dismissed.
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2024 (6) TMI 1258
Refund of amount paid under threat and coercion, during search proceedings - writ petition was dismissed on the ground that the allegation made by the appellants that there was no proper authorization in INS-01 was a false statement since the revenue, during the course of argument, had produced a copy of the INS-01 dated 12th June, 2023 - HELD THAT:- The payment of tax during the course of search i.e. even before the search could be completed cannot be at any stage of imagination to be treated to be a voluntary payment. Furthermore, it is an admitted case that the department has not issued any receipt under GST DRC-04.
The order passed in the writ petition is set aside and there will be a direction to the respondents/GST authorities to return the sum of Rs. 30,00,000/- to the appellants within a period of six weeks from the date of receipt of server copy of this order. With regard to the claim for interest is concerned, the appellants are at liberty to raise such a plea during the adjudication of the show-cause notice for which, we propose to issue the following directions.
Appeal allowed.
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2024 (6) TMI 1257
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - SCN and impugned order were uploaded in the portal and not communicated to the petitioner through any other mode - mismatch between the petitioner's GSTR 3B return and the auto-populated GSTR 2A - HELD THAT:- On examining the impugned order, it is evident that the tax proposal related to a mismatch between the petitioner's GSTR 3B return and the auto-populated GSTR 2A. It is also clear that such proposal was confirmed because the tax payer did not file objections or avail of personal hearing opportunity. By taking into account the assertion that the petitioner could not participate in proceedings on account of being unaware of the same, the interest of justice warrants that the petitioner be provided an opportunity to contest the tax demand on merits by putting the petitioner on terms.
The impugned order dated 12.12.2023 is set aside on condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order - petition disposed off by way of remand.
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2024 (6) TMI 1256
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - petitioner was not aware of proceedings, and could not participate in the same - HELD THAT:- On examining the impugned order, it is evident that the tax proposal was confirmed because the tax prayer did not respond to the show cause notice by filing objections. The impugned order indicates that the personal hearing notice dated 10.03.2023, reminder dated 29.05.2023 were sent by RPAD and that the latter was received by the petitioner on 01.06.2023. In these circumstances, the explanation of the petitioner that he was unaware on account of notices being uploaded on the GST portal cannot be accepted. At the same time, it is apparent that the tax proposal was confirmed without the petitioner being heard and liability was imposed under Section 74 of applicable GST enactments.
The impugned order dated 30.10.2023 is set aside on condition that the petitioner remits that 15% of the disputed tax demand within fifteen days from the date of receipt of a copy of this order. Within the said period, the petitioner is directed to submit a reply to the show cause notice - Petition disposed off.
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2024 (6) TMI 1255
Violation of principles of natural justice - petitioner failed to reply to rest of the notices that preceded the impugned order - discrepancies between the amount of the credit reflected in Form GSTR 2A - HELD THAT:- Considering the fact that the petitioner appears to be a small time dealer and considering the fact that the petitioner is willing to deposit 25% of the disputed tax, as a condition, for the case to be heard again, this Court is inclined to grant partial relief to the petitioner by quashing the impugned order and remitting back the case to the respondent to pass fresh orders on merits and in accordance with law within a period of two months from the date of receipt of a copy of this order, subject to the petitioner depositing 30% of the disputed tax within a period of 30 days from the date of receipt of a copy of this order from its Electronic Cash Register and subject to filing reply to the show cause notices that preceded the impugned order.
Petition disposed off by way of remand.
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2024 (6) TMI 1254
Refund of unutilized accumulated ITC - Rule 89 (4) of the CGST Rules - non-constitution of GST tribunal - period July 2017 to January 2018 - HELD THAT:- When the petition was filed, the CGST Tribunal was not constituted. It is constituted now. Therefore, on asking as to why petitioner should not file an appeal before the Tribunal, it is stated that a recovery notice has also been received for Rs. 3,62,841/-.
The petition is disposed off with a direction to petitioner to exhaust its alternate remedy by filing an appeal before the Tribunal. If the appeal is filed within four weeks from today, the delay, if any, shall be deemed to have been condoned.
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2024 (6) TMI 1253
Time limitation - petition filed long after the time expired for filing an Appeal under Section 107 of TNGST Act, 2017 - HELD THAT:- This Court is inclined to dispose of this Writ Petition by giving liberty to the petitioner to file statutory appeal before the Deputy Commissioner (GST-Appeal), Madurai and Tirunelveli, within 30 days from the date of receipt of a copy of this order - Since the Deputy Commissioner (GST-Appeal), Madurai and Tirunelveli, is not a party to this proceedings, the Deputy Commissioner (GST-Appeal), Madurai and Tirunelveli, is impleaded as sue moto as second respondent.
The petition is disposed off.
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2024 (6) TMI 1252
Maintainability of petition - petitioner has an alternate remedy by way of filing an appeal before the Appellate Officer/Deputy Commissioner (ST) (Appeals), Trichy - HELD THAT:- There is no merits in this Writ Petition and the petitioner has an alternate remedy, the Court is inclined to dismiss this Writ Petition by giving liberty to the petitioner to file statutory appeal before the Deputy Commissioner (ST) (Appeals), Trichy under Section 107 of TNGST Act, 2017 within 30 days of this order.
The petition is dismissed.
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2024 (6) TMI 1251
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - SCN and impugned order were uploaded in the “view additional notices and orders” tab on the GST portal, but not communicated through any other mode - HELD THAT:- On perusal of the impugned order, it is evident that the tax proposal was confirmed solely because the petitioner did not reply to the show cause notice. In view of the assertion that the petitioner could not participate in the proceedings on account of being unaware of the same, the interest of justice warrants that the petitioner be provided an opportunity to contest the tax demand on merits. The petitioner has placed on record evidence that a sum of Rs. 8,35,000/- was debited from the bank account on 19.06.2024. Therefore, to that extent, revenue interest is secured.
The impugned order dated 18.12.2023 is set aside subject to verification of the debit of a sum of Rs. 8,35,000/-. The petitioner is permitted to file a reply to the show cause notice within two weeks from the date of receipt of a copy of this order.
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2024 (6) TMI 1250
Violation of principles of natural justice - SCN and impugned order were uploaded on the GST portal, but not communicated to the petitioner through any other mode - mismatch between the petitioner's GSTR-3B returns and the GSTR-1 statement - HELD THAT:- The impugned order discloses that the tax proposal was confirmed because the petitioner did not respond to the show cause notice or utilize the opportunity of participating in personal hearings. Since the petitioner asserts that such participation was not possible on account of not being aware of the proceedings, the interest of justice warrants that the petitioner be provided an opportunity, albeit by putting the petitioner on terms.
The impugned order dated 30.12.2023 is set aside subject to the condition that the petitioner remits 10% of the disputed tax demand, within two weeks from the date of receipt of a copy of this order. Within the said period, the petitioner is permitted to submit a reply to the show cause notice - petition disposed off.
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2024 (6) TMI 1249
Violation of Principles of Natural Justice - petitioner was not heard - HELD THAT:- It is noticed that the impugned order dated 26.03.2024 passed by the respondent, though is reasoned it has been passed without hearing the petitioner.
The impugned order dated 26.03.2024 is quashed and the case is remitted back to the respondent to pass fresh orders on merits after hearing the petitioner - Petition disposed off by way of remand.
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2024 (6) TMI 1248
Violation of principles of natural justice - petitioner was unaware of the notice that preceded the impugned order as also the impugned order that can be passed on 23.06.2023 - HELD THAT:- Considering the fact that the impugned order has been passed against the petitioner without giving an opportunity to the petitioner to reply the show cause notice, the impugned order is quashed and the matter is remitted back to the respondent.
The petitioner is at liberty to file a reply to the show cause notice subject to the petitioner depositing 10% of disputed tax within a period of 30 days from the date of receipt of a copy of this order. In case the aforesaid sum of Rs. 22,83,579/- has already been recovered, there shall be no further recovery, pending further orders regarding the demand proceedings.
Petition disposed off by way of remand.
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2024 (6) TMI 1247
Challenge to assessment order - documents submitted by the petitioner were not taken into consideration and on the ground that the tax proposal was confirmed on a ground that was not raised in the show cause notice - HELD THAT:- The only reply in respect of proceedings initiated by the first respondent is the reply dated 11.10.2023. Apart from uploading a couple of documents, the petitioner failed to respond to the show cause notice. In the show cause notice, the tax proposal was founded on a mismatch between the petitioner's GSTR-3B returns and the auto-populated GSTR-2A. The impugned order refers both to Section 16(4) of applicable GST enactments and to the mismatch. In those circumstances, interference is not warranted merely because Section 16(4) was also referred to - albeit by putting the petitioner on terms, it is just and appropriate that the petitioner be provided an opportunity to contest the tax demand on merits.
The impugned order dated 30.01.2024 is set aside and the matter is remanded to the first respondent for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand within three weeks from the date of receipt of a copy of this order - Petition disposed off by way of remand.
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