TMI Blog2021 (10) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 107 (6) of the OGST Act. Further, as rightly pointed out by Mr. Mishra, learned ASC, the proviso to Section 41 (2) of the OGST Act limits the usage to which the ECRL could be utilised. It cannot be debited for making payment of pre-deposit at the time of filing of the appeal in terms of Section 107 (6) of the OGST Act. The Court is unable to find any error having been committed by the appellate authority in rejecting the Petitioner s contention that the ECRL could be debited for the purposes of making the payment of pre-deposit. The Court is of the view that the prayer of the Petitioner that the debiting of the ECRL made by it should be reversed is a separate cause of action for which the Petitioner should indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 were passed by Opposite Party No.2 in respect of each of the periods i.e. March, April, May, June and July, 2020 and therefore, five petitions have been filed in this Court. 4. This Court has heard the submissions of Mr. Ajit Kumar Roy, learned counsel appearing for the Petitioner and Mr. Sunil Mishra, learned Additional Standing Counsel (ASC) for the Department. 5. The Petitioner is a partnership firm engaged in the business of execution of works contract including civil, electrical and mechanical. 6. In the instant case for each of the above periods, a demand was raised by the Deputy Commissioner of CT GST, Barbil Circle, Jajpur, Odisha (Opposite Party No.1) which resulted in an extra demand for IGST, CGST and OGST inclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verse charge basis, or; the amount payable under Section 10, or any amount payable towards interest, penalty, fee or any other amount under the Act shall be paid by debiting the ECL (i.e. the cash ledger) maintained under Rule 87 and the electronic ledger liability register (ELR) shall be credited accordingly. 9. It is submitted by Mr. Roy that on a collective reading of the above Rules, the pre-deposit could be made by debiting the ECRL. Mr. Roy refers to the definition of Output Tax under Section 2 (82) of the OGST Act which means tax chargeable under this Act on taxable supply of goods or services or both made by the taxable person or his agent but excludes tax payable on reverse charge basis. On this basis, it is contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, learned ASC in addition refers to the decision of the Supreme Court of India in M/s. Jayam Co. v. State of Tamil Nadu (2016) 15 SCC 125 which held that the ITC itself is a concession and has to be utilized as per the provisions in the GST statute and not otherwise. 12. Mr. Roy, learned counsel for the Petitioner, on the other hand refers to the decision of Supreme Court of India in J.K. Synthetics Ltd. v. Commercial Taxes Officer 94 (1994) STC 422 where certain observations were made in the context of payment of interest. It was held that the provisions that permit the levy and collection of interest, even if construed as forming part of the machinery provision, is substantive law for the simple reason that in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision . 15. The reliance by Mr. Roy, learned counsel for the Petitioner on the judgment of the Gujarat High Court in Vinayak Trexim v. State of Gujarat [2020] 79 GSTR 118 (Guj) is also not helpful to him. There a sum of ₹ 20,00,000/- was to be refunded to the Assessee and it was directed by the High Court that this amount could be used for the purposes of pre-deposit. It is not possible in the present case to equate the output tax payable to the amount of pre-deposit required to be made. There is world of difference between an amount which is refundable and an amount which is liable to be paid as output tax. Here there is no amount refundable to the Petitioner which could be utilized for making of payment of the pre-deposit. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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