TMI Blog2023 (7) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ined finality. The Hon ble Apex Court in the case of CCE Vs Prince Gutkha Ltd. [ 2015 (7) TMI 964 - SUPREME COURT] has held that adjudicating authority dropping earlier demand accepting explanation of Assessee, issuance of second show cause notice on same cause of action, not permissible. In the case of COMMR. OF C. EX., VADODARA VERSUS GUJARAT STATE FERTILIZERS CHEM. LTD. [ 2008 (7) TMI 61 - SUPREME COURT ] it is held by the Hon ble Apex Court that order of the Tribunal has attained finality due to non-filing of appeal by the department. Hence, appeal on the same issue is not maintainable which has already attained finality. The Respondents in the instant case being not aggrieved by the First Appellate Order dated 16-01-2021, did not challenge the same or availed remedies available under the law but accepted the same and allowed the same to attain finality; thus now they cannot be allowed to turn around and re-agitate a matter afresh which has already come to an end by due process of law. Having regard to the discussions made, the Revenue cannot re-agitate and issue fresh show cause notices again for the same cause of action covering same period against which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication allowed. - HON BLE MR. JUSTICE RONGON MUKHOPADHYAY And HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mr. K.Kurmy, Adv. Mr. N.K.Pasari, Adv Ms. Sidhi Jalan, Adv. For the Respondents : Mr. Ashutosh Anand, AAG-III JUDGMENT Heard learned counsel for the parties. 2. The instant writ application has been preferred for following reliefs:- (i) For issuance of an appropriate writ(s), order(s), or direction(s) for quashing and setting aside the impugned Show Cause Notice dated 16.09.2022 bearing Ref. No. 1131 dated 16.09.2022 along with Summary of Show Cause Notice in Form GST-DRC-01 dated 16.09.2022 which are at Annexure-1 hereto, issued by the respondent No.3 for the period April 2019 to March 2020 in purported exercise of powers conferred under section 73, Section 75 (120, Section 50 of the Jharkhand Goods and Service Tax Act, 2017 read with Rule 142 (1) of the Jharkhand Goods and Service Tax Act, 2017 read with Rule 142 (1) of the Jharkhand Goods and Services Tax Rules, 2017; (ii) For issuance of an appropriate writ(s), order(s), or direction(s) for quashing and setting aside the impugned Show Cause Notice dated 20.10.2022 bearing Ref. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner has already discharged interest of Rs.23,95,500/- which is not the subject matter of dispute in the instant case. 4. By the impugned show cause notice dated 16-09-2022 interest is demanded not for delayed payment of tax but for delayed filing of GSTR-3B returns. In the first round of litigation, the respondent No.2, straight away passed order no.22 dated 14-03-2020 (Ref. No. ZA200320001253R) in purported exercise of powers under Section 73 of the JGST Act and issued Summary Order in FORM DRC-07 dated 16-03-2022 in exercise of powers under Rule 100/Rule 142(5) confirming interest demand of Rs.61,45,233.94/- (IGST Rs.3,17,399,96 + CGST Rs.28,99,045.40 + SGST Rs.29,28,788.58) for the period April, 2019 to November, 2019 for purported delay in filing of GSTR-3B returns under Section 39(1) of the JGST Act read with Rule 61(5) of the JGST Rules, 2017 for the period April, 2019 to November, 2019. The Respondent No.2 before passing the said adjudication Order dated 14-03-2020 did not issue any show cause notice as mandated under Section 73 of the JGST Act, 2017, and on this ground the Petitioner-Company challenged the order dated 14-03-2020/DRC-07 dated 16-03-2020 before the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Mr. K. Kurmy, learned counsel for the petitioner assisted by Mr. N. K. Pasari and Ms. Sidhi Jalan submits that the initiation of fresh proceedings once again by the impugned Show Cause Notices (Annexure-1 Annexure 2) by the Respondent No.3 Respondent No.2 for the same cause of action (except month of March, 2020 in Annexure-1) even after the First Appellate Order dated 16-01-2021 which was decided in favour of the Petitioner and has attained finality; is wholly without jurisdiction and bad in law and procedure and is also against the principles of res judicata contemplated in Section 11 of the Code of Civil Procedure, 1908. Learned counsel further submits that in the case of UOI Vs. Vicco Laboratories reported in (2007) 218 ELT 647 (SC), it is held that reopening concluded assessment amounts to abuse of the process of law. It is held that when there is abuse of the process of law, writ under Article 226 would be maintainable. The Hon ble Apex Court in the case of Duncans Industries Ltd Vs. CCE reported in (2006) 201 E.L.T 517(S.C), has held that for the same period two assessments are not permissible in law. 6. With respect of demand for March, 2020, learned counsel co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter the Circle In-charge DCST, West Circle, Ranchi took over the matter and issued a Show Cause Notice in Form DRC-01 vide process no. 1510 dated 20.10.2022 to the petitioner. Since the matter was taken over by the D.C.S.T., hence he had to issue fresh Show Cause Notice to provide the taxpayer opportunity of being heard. Consequently, the D.C.S.T. issued the notice in DRC-01 along with show cause notice. He contended that as on date the proceeding as initiated under section 73 of the JGST Act by the Assistant Commissioner of State Tax has been taken over by the Deputy Commissioner of State Taxes, West Circle, Ranchi and only one proceeding under section 73 of the JGST Act is going on. The simultaneous proceeding under section 73 before two (2) authorities for the same period was an administrative process, which occurred due to reason above stated. He lastly submits that the instant writ application is devoid of any merit and deserves to be dismissed. 8. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein; it is evident that the first Appellate Order dated 16-01-2021 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )] , wherein it has been held that the MODVAT credit would be available on inputs used to manufacture steam which was in turn used for manufacture of exempted or nil duty rated final product or for any other purpose. It is stated before us that no appeal has been preferred by the Revenue against the decision in the aforesaid case. The same has thus become final. 9. At this stage it is pertinent to mention here that under Section 112(3) of the JGST Act, the Commissioner may, on his own motion or upon request from the Commissioner of Central Tax, call for and examine the record of any order passed by the Appellate Authority or the Revisional Authority under this Act or under the Central Goods and Services Tax Act for the purpose of satisfying himself as to the legality or propriety of the said order may, by order, direct any officer subordinate to him to apply to the Appellate Tribunal within six months from the date on which the said order has been passed, for determination of such points arising out of said order as may be specified by the Commissioner in his order. Further, Section 112(4) of the JGST Act provides that where in pursuance of an order under Section 112(3) the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out authority of law and also barred by principles of res-judicata. 11. So far as the demand of interest with respect of March, 2020 is concern; the demand of interest of Rs.6,63,025/- in the impugned first Show Cause Notice dated 16-09-2022 (Annexure-1) is also erroneous and is contrary to State GST Notification No.451 dated 29-07-2017 as amended by Notification No.31/2020-State Tax dated 25-06-2020 and corresponding Central GST Notification No.13/2017-Central Tax dated 28-06-2017 as amended by Notification No.31/2020-CT dated 03-04-2020. As per Notification No.31/2020-State Tax dated 25-06-2020 and Notification No.31/2020-CT dated 03-04-2020 as a COVID-19 relaxation Measures, the rate of interest for the month of February, 2020 to April, 2020 was reduced to Nil for first 15 days of delay and 9% thereafter in place of 18%, for registered persons having annual turnover above Rs.5.00 Cr. Since the annual turnover of the Petitioner is above Rs.5.00 Cr.; hence, they are entitled to the benefit of said notification. Considering the above extension of limitation for filing of GSTR-3B returns and reduction in the rate of interest, amount of Interest demand should have been Rs.12,79 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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