TMI Blog2021 (5) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit cannot travel beyond the point of removal. It would be more appropriate if petitioner responds to the impugned show cause-cum-demand notice by filing reply and thereafter if respondent No.3 is not satisfied with the show cause reply, the matter may be adjudicated by the adjudicating authority - Petition dismissed. - WRIT PETITION NO.12476 OF 2019 - - - Dated:- 21-5-2021 - UJJAL BHUYAN MILIND N. JADHAV, JJ. Mr. Vikram Nankani, Senior Advocate a/w. Mr. Jitendra Motwani and Ms. Rinkey Jassuja i/b. M/s. Economic Laws Practice for Petitioner. Mr. Pradeep S. Jetly, Senior Advocate a/w. Mr. J. B. Mishra for Respondents. P.C. : (Per Ujjal Bhuyan, J.) Heard Mr. Vikram Nankani, learned senior counsel for the petitioner and Mr. Pradeep S. Jetly, learned senior counsel for the respondents. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of show cause notice dated 09.05.2019 issued by respondent No.3. 3. By the impugned show cause-cum-demand notice dated 09.05.2019, respondent No.3 has called upon the petitioner to show cause as to why irregular CENVAT credit of ₹ 2,02,30,256.00 for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the amended definition, input service means any service amongst others used by the manufacturer whether directly or indirectly in or in relation to the manufacture of final products and clearance of final products upto the place of removal. Thus, as per the amended definition, no credit in respect of the input services availed of beyond the place of removal would be available to the assessee. 8. It is stated that investigation was initiated in August, 2018 by the Directorate General of GST Intelligence, Mumbai Zonal Unit in relation to the CENVAT credit availed of by the petitioner in respect of service tax paid on transportation charges incurred for transportation of the products from the factories / depots to the premises of the customers on the ground that the said service availed by the petitioner was not an eligible input service as per provisions of rule 2(l) of the CENVAT Credit Rules. During the course of investigation, statements of several officers of the petitioner were recorded by the investigating authorities. 9. Pursuant to such investigation, respondent No.3 issued the show cause-cum-demand notice dated 09.05.2019 which has been impugned by the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at High Court was disposed of as withdrawn on 16.09.2019. Therefore, the present writ petition may not be entertained and the petitioner may be relegated to the forum of the adjudicating authority. 12. Petitioner has filed rejoinder affidavits to the two reply affidavits of respondent No.2. Regarding the show cause notice impugned before the Gujarat High Court, it is submitted that the writ petition filed by the petitioner was withdrawn as an outcome of the hearing before the Gujarat High Court whereafter reply was filed by the petitioner to the show cause notice. Without considering the contentions advanced by the petitioner in the reply, the adjudicating authority passed order-in-original dated 29.11.2019 upholding the demand. This has been challenged by the petitioner again before the Gujarat High Court in Special Civil Application No.4023 of 2020 in which Gujarat High Court has issued notice on 13.02.2020. 13. Detailed submissions have been made by Mr. Nankani, learned senior counsel for the petitioner in support of the challenge to the show cause-cum-demand notice dated 09.05.2019. Besides contending on merit that petitioner is eligible to the credit of the input service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not eligible to the petitioner as per rule 2(l) of the CENVAT Credit Rules post amendment. After analyzing the materials on record and statements of various officers of the petitioner which were recorded during investigation, it has been observed that CENVAT credit on input services is eligible for outward transportation upto the place of removal. Assessee was not eligible for taking CENVAT credit on the service tax paid on transportation charges incurred for transportation of goods from depots and factories to the place of the customers i.e., beyond the place of removal. Referring to the amendment, it is contended that it is only upto the place of removal that any service appears to have been treated as input service for allowing CENVAT credit thereon. Post amendment, the benefit which was admissible earlier even beyond the place of removal would now get terminated at the place of removal. CENVAT credit cannot travel beyond the point of removal. Respondent No.3 has further alleged that petitioner had intentionally and deliberately suppressed the fact of taking CENVAT credit of outward GTA service and with mala fide intent to avail ineligible CENVAT credit had fraudulently contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent authority shall consider the reply filed by the petitioner in accordance with law. 3. Subject to the said observations, the petition is dismissed as withdrawn. 18. After hearing learned counsel for the parties and upon due consideration, we also feel that it would be more appropriate if petitioner responds to the impugned show cause-cum-demand notice by filing reply and thereafter if respondent No.3 is not satisfied with the show cause reply, the matter may be adjudicated by the adjudicating authority. We say this because adjudication on the show cause-cum-demand notice would require dealing with a wide range of issues involving facts and factual aspects. A Writ Court would not be the appropriate forum to deal with and adjudicate on such issues. Interference by the Writ Court at this stage would not be justified. Since by the impugned show cause-cum-demand notice, petitioner was asked to show cause within 30 days of the date of receipt of the notice which period had expired and since the matter was pending before this Court all this while with the order dated 08.02.2021 clarifying that as the matter was heard and has been reserved for judgment, impugned show c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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