TMI Blog2023 (10) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... the imposition of penalty/interest either under Section 73(9) or Section 50(3) of the CGST Act, 2017, cannot be countenanced. If the petitioner had been allowed to successfully transition the credit under Sections 138 to 140 of the CGST Act, 2017, then and there, the amount would have available for being utilization. By availing the amount as regular credit and utilizing the same, the petitioner has not caused any loss to the revenue. There are no reasons to sustain the impugned order insofar as it seeks to impose interest at 10% and penalty on the petitioner as the issue is revenue neutral - petition allowed. - Honourable Mr.Justice C.Saravanan For the Petitioner : Mr.C.Seethapathy For the Respondents : Mr.Rajendran Raghavan Senior Standing Counsel ORDER The petitioner is aggreived by the impugned Order-in-Appeal No.267/2022-JC (GSTA-II) dated 04.08.2022 passed by the first respondent herein. 2. By the impugned order, the first respondent has partly allowed the petitioner's Appeal against Order-in-Original No.05/2022 dated 28.02.2022 passed by the second respondent. 3. Vide Order-in-Original No.05/2022 dated 28.02.2022, the second respondent had passed the following order:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Section 20 of IGST Act, 2017. 12. I demand the excess credit of Rs. 13,268/- availed as per GSTR3B vs their work sheet/credit Ledger the taxpayer for the reasons stated in para 16.4(b) supra. 13. I demand interest under section 50(3) of CGST Act, 2017/TNGST Act, 2017. 14. I impose a penalty of Rs. 13268/- under Section 122(2)(a) read with Section 74(1) of the CGST Act, 2017, SGST Act, 2017 and as made applicable to IGST Act as per Section 20 of IGST Act, 2017. 15. I drop further proceedings on the demand of the ITC credit of Rs. 11,354/- for the reasons stated in para 16.4 (c) and drop further proceedings on this issue. 16. I drop further proceedings on the demand of the ITC credit of Rs. 16,310/- for the reasons stated in para 16.4 (d). 17. I demand the irregular ITC credit availed Rs. 6,912/- availed on invoices not reflected in their GSTR2A for the reasons stated in para 16.4 (e) supra. 18. I demand appropriate interest under section 50(3) of CGST Act, 2017/TNGST Act, 2017. 19. I impose a penalty of Rs. 6,912/- under Section 122(2)(a) read with Sectio6n 74(1) of the CGST Act, 2017, SGST Act, 2017 and as made applicable to IGST Act as per Section 20 of IGST Act, 2017 . 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pting the contention of the audit. After pursuing the reply to SCN, impugned order and grounds of appeal, I find that the appellant has accepted and paid the amount with interest before issue of SCN and no reply or grounds were submitted before the adjudicating authority for contesting the demand on ITC on Hotel, Travel, Insurance, etc. Therefore, I find that this is fresh ground at the appellate stage and I am not able to discuss what the adjudicating authority did not discuss. Accordingly, I uphold the impugned order confirming the demand Rs. 47,355/- being the ineligible ITC availed on Hotel, Travel, Insurance, etc. Further, the respondent has imposed penalty under section 122(2)(a) read with Section 74(1) of the Act. The appellant has availed the ITC Rs. 47,355/- in GSTR-3B on Travel, Insurance and Hotels, etc. Since the respondent has not established any reason for fraud or any wilful misstatement or suppression of facts with intention to evade payment, I find that the ITC Rs. 47,355/- availed is for any reason other than the reason of fraud or any wilful misstatement or suppression of fact to evade tax. The appellant has paid Rs. 47,355/- with interest Rs. 22,924/- as stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t could not be transitioned due to technical glitches. 9. That apart, the petitioner has also paid the differential amount of Rs. 4,000/- (Rs.12,47,610/- - Rs. 12,43,610/-) together with interest of Rs. 3,112/- in all Rs. 7,112/- on 30.01.2023. It is submitted that the petitioner was entitled to transition the entire amount of Input Tax Credit lying un-utilized on 30.06.2017 and thus, the petitioner made an attempt to file Form Tran-1 on 27.12.2017 but was unsuccessful due to technical glitches. It is further submitted that imposition of interest and penalty is un-justified, as admittedly the petitioner was entitled to transition the aforesaid credit of Rs. 12.43 lakhs. 10. The learned Senior Standing Counsel for the respondents has filed a detailed written submission. 11. It is submitted that the petitioner had wrongly availed the Input Tax Credit, although the credit was to be transitioned by filing Form Tran-1. It is further submitted that the petitioner reversed the credit only on 17.08.2021 after the audit was conducted during January-2021 and after the mistake was pointed out to the petitioner. It is further submitted that a Show Cause Notice was also issued to the petitioner ..... 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