9911796707
TMI Blog2021 (11) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... s: Rs. 1,46,47,191/-, S.H. Ed Cess: Rs. 71,77,464/- & PLA: Rs. 1,65,19,038/-] in their Trans-1 filed on December 26, 2017". Consequently, the petitioner was required to show cause, within 30 days of receipt of the impugned notice, as to why- "(i) the Trans-1 credit amounting to Rs. 3,83,43,753/- comprising of Ed Cess: Rs. 1,46,47,191/-, S.H. Ed Cess: Rs. 71,77,464/- and PLA: Rs. 1,65,19,038/- availed by them should not be rejected and recovered under subsection (1) of Section 73 for the above discussed reasons. (ii) the amount of Rs. 3,83,43,753/- reversed by them in their Electronic Credit Ledger in February 2018 (shown in the GSTR-3B for the month of January 2018) should not be appropriated. (iii) interest amounting to Rs. 14,11,890/- calculated @24% per annum on Rs. 3,83,43,753/- reversed by them should not be recovered under Section 50(3) of the CGST Act. (iv) penalty under Section 122(2)(a) of the CTST Act should not be imposed." 3. According to the petitioner, the impugned notice proceeds on the footing that the transitional arrangement for taking Input Tax Credit in the cases of CESS such as Education Cess (E Cess), Secondary & Higher Education Cess (SHE Cess) and K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill inoperative in law. It has, accordingly, been prayed that the impugned show-cause notice be set aside. 5. Mr. Jetly, learned senior counsel appearing for the respondents opposed the writ petition by contending that the impugned show-cause notice has been issued by an officer who does have the jurisdiction to issue such notice; hence, the petitioner ought to be directed to raise all points that are available to it in defence for consideration of the said officer. It was further contended by him that the point urged by the petitioner that the impugned show cause notice is not founded on any legal premises, is a jurisdictional issue; and such issue can even be urged by it for an adjudication by the respondent no.3. In view of the impugned show-cause notice not suffering from absolute want of jurisdiction to even investigate facts, and the respondent no.3 having issued the notice without prejudging any issue, he contended that this is not an appropriate stage for this Court to pronounce on the merits of the petitioner's claim and set aside the impugned notice. If at all the petitioner is successful in persuading the respondent no.3 not to proceed further, the notice would obviousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r legality of the impugned show-cause notice, may read Section 28 of the Amending Act. It reads as follows: - "28. In section 140 of the principal Act, with effect from the 1st day of July, 2017,- (a) In sub-section (1), after the letters and word "CENVAT credit", the words "of eligible duties" shall be inserted and shall always be deemed to have been inserted; (b) In the Explanation 1- (i) for the word, brackets and figures "sub-sections (3), (4)", the word, brackets and figures "sub-sections (1), (3), (4)" shall be substituted and shall always be deemed to have been substituted; (ii) clause (iv) shall be omitted and shall always be deemed to have been omitted; (c) in the Explanation 2- (i) for the word, brackets and figure 'sub-section (5)", the words, brackets and figures "sub-sections (1) and (5)" shall be substituted and shall always be deemed to have been substituted; (ii) clause (iv) shall be omitted and shall always be deemed to have been omitted; (d) after Explanation 2 as so amended, the following Explanation shall be inserted and shall always be deemed to have been inserted, namely:- "Explanation 3.- For removal of doubts, it is hereby clarified that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period ending with the day immediately preceding the appointed day in such manner as may be prescribed: Provided that the registered person shall not be allowed to take credit unless the said credit was admissible as CENVAT credit under the existing law and is also admissible as input tax credit under this Act. Explanation. For the purposes of this sub section, the expression "unavailed CENVAT credit" means the amount that remains after subtracting the amount of CENVAT credit already availed in respect of capital goods by the taxable person under the existing law from the aggregate amount of CENVAT credit to which the said person was entitled in respect of the said capital goods under the existing law. (3) A registered person, who was not liable to be registered under the existing law, or who was engaged in the manufacture of exempted goods or provision of exempted services, or who was providing works contract service and was availing of the benefit of notification No.26/2012 Service Tax, dated the 20th June, 2012 or a first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer, shall be entitled to take, in his electronic credit ledger, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition that the invoice or any other duty or tax paying document of the same was recorded in the books of account of such person within a period of thirty days from the appointed day : Provided that the period of thirty days may, on sufficient cause being shown, be extended by the Commissioner for a further period not exceeding thirty days: Provided further that said registered person shall furnish a statement, in such manner as may be prescribed, in respect of credit that has been taken under this sub section. (6) A registered person, who was either paying tax at a fixed rate or paying a fixed amount in lieu of the tax payable under the existing law shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi finished or finished goods held in stock on the appointed day, subject to the following conditions, namely: (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is not paying tax under section 10; (iii) the said registered person is eligible for input tax credit on such inputs under this Act; (iv) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (ii) the additional duty leviable under sub section (1) of section 3 of the Customs Tariff Act, 1975 (51 of 1975) (iii) the additional duty leviable under sub section (5) of section 3 of the Customs Tariff Act, 1975 (51 of 1975) (iv) the additional duty of excise leviable under sect ion 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978); (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); and (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001 (14 of 2001), in respect of inputs held in stock and inputs contained in semi finished or finished goods held in stock on the appointed day. Explanation 2. For the purposes of sub section (5), the expression "eligible duties and taxes" means (i) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said capital goods under the existing law. (3) A registered person, who was not liable to be registered under the existing law, or who was engaged in the manufacture of exempted goods or provision of exempted services, or who was providing works contract service and was availing of the benefit of notification No.26/2012 Service Tax, dated the 20 th June, 2012 or a first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer, shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi finished or finished good s held in stock on the appointed day, subject to the following conditions, namely: (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is eligible for input tax credit on such inputs under this Act; (iii) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of such inputs; (iv) such invoices or other prescribed documents were issued not earlier than twelve months immediately p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi finished or finished goods held in stock on the appointed day, subject to the following conditions, namely: (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is not paying tax under section 10; (iii) the said registered person is eligible for input tax credit on such inputs under this Act; (iv) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of inputs; and (v) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day. (7) Notwithstanding anything to the contrary contained in this Act, the input tax credit on account of any services received prior to the appointed day by an Input Service Distributor shall be eligible for distribution as credit under this Act, even if the invoices relating to such services are received on or after the appointed day. (8) Where a registered person having centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 136 of the Finance Act, 2001 (14 of 2001), in respect of inputs held in stock and inputs contained in semi finished or finished goods held in stock on the appointed day. Explanation 2. For the purposes of sub sections (1) and (5) the expression "eligible duties and taxes" means- (i) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (ii) the additional duty leviable under sub section (1) of section 3 of the Customs Tariff Act, 1975 (51 of 1975); (iii) the additional duty leviable under sub section (5) of section 3 of the Customs Tariff Act, 1975 (51 of 1975); (iv)*****+ (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001 (14 of 2001); and (viii) the service tax leviable under sect ion 66B of the Finance Act, 1994 (32 of 1994), In respect of inputs and input services received on or after the appointed day. Explanation 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law as well as facts requiring existence or non-existence of a material fact for assumption of jurisdiction. 12. We are conscious of the settled law that the High Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India ought not to interfere with a show-cause notice as a matter of routine or for the mere asking. However, it is only in a case where a show-cause notice is found to be totally non-est in the eyes of law for absolute want of jurisdiction of the authority issuing the notice to even investigate into the facts that the writ court may, instead of relegating the noticee to respond to the show-cause notice, itself examine the point of lack/want of jurisdiction. If any authority is required, one may profitably refer to the decision of the Supreme Court in Special Director and Anr. V. Mohd. Ghulam Ghouse & Anr., reported in (2004) 3 SCC 440. 13. Although it is true, as contended by Mr. Jetly, that the respondent no.3 does not lack the jurisdiction to issue a notice of the nature impugned herein provided the circumstances therefor do exist, the question that has arisen for our consideration is whether issuance of the show-cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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