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TMI Blog2023 (10) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... ate order seeks to deny the transitional credit of Rs. 23,86,069 claimed by the Petitioner on certain extraneous and procedural considerations, which have defeated the substantive rights of the Petitioner, as well as imposes penalty of Rs. 2,38,606.98 and interest of Rs. 5,72,656.76. (ii) For the issuance of an appropriate writ/ order / direction including a writ in the nature of a certiorari, quashing and setting aside the summary of show cause notices dated 29.10.2018 (Annexure - 3) and 14.12.2018 (Annexure issued in Form GST DRC-01 in as much the same was not accompanied by a proper show cause notice under Section 73 of the JGST Act in terms of Rule 142(1)(a) of the JGST Rules, and further because it does not contain any particulars regarding the irregularity committed by the Petitioner to enable it to reply to the allegations contained therein. (iii) For the issuance of an appropriate writ/ order / direction including a writ in the nature of a certiorari, quashing and setting aside the summary of the order dated 16.1.2019 issued in Form GST DRC-07 (Annexure 2) in as much as the same was not accompanied by a detailed order under Section 73 of the JGST Act setting out the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner. After receipt of the order, the Petitioner applied for the entire order sheet. A summary of notice in Form DRC-01 was issued for an amount of Rs. Rs.9,07,856/- (including Rs. 6,39,335/- as tax, Rs. 2,04,587/- as Interest @ 24% and Rs. 63,934/- as Penalty). The department on realizing that a computing mistake had been made, issued a revised DRC - 01 for an amount of Rs. 1,18,78,385/- (including Rs. 87,34,107/- as tax, Rs. 22,70,867.82/- as Interest and Rs. 8,73,410.70/- as Penalty). The Petitioner was only served a summary of show cause notices and not the show cause notices itself. Petitioner preferred an appeal u/s 107 of the JGST Act after making the required pre deposit. During the course of hearing before the Ld. Appellate Authority, the Petitioner was required to furnish various details such as statement of stock as on the date of coming into force of the JGST Act, Form JVAT 410 / 411 for the period 2016 - 17 and 2017 - 18, Audit Report in Form JVAT 409 and sample purchases invoices etc. The learned Appellate Authority while accepting the transition under Section 140(1), i.e., the amount claimed under column 5(c) of TRAN-1, has partially rejected the claim of the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of invoices or other supporting documents. Therefore, the invoices suffice the requirement of Section 140(3)(iii) and furnishing of JVAT 410/411 is not required under the Act. (iv) The finding of the appellate court that the amount of purchases shown by the petitioner in its return and the details mention in JVAT 410/411 is not in consonance with online returns filed by the seller is also perverse, in view of the fact that the Assessing Officer for the purpose of transition of credit, is only required to verify the figures specified in the TRAN-1. Further from perusal of impugned appellate order it clearly transpires that the transitional credit has been disallowed not because of non-conformity with the conditions stipulated in Section 140 (3) but because of consideration which were the subject matter of assessment under JVAT Act. Further the maximum extents to which the respondent can verify the genuineness of the transitional credit is to see whether the transitional credit is admissible as credit under this Act, i.e., the JGST Act. (v) The impugned appellate order is also bad in law as it holds that for the year 2016-17 the petitioner had shown excess purchases is in teeth o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for verification by the concerned authority due to which the authority had to proceed ex-parte and an order was passed under section 73 (9) on 16.01.2019 and also GST DRC-07 was issued to the petitioner. Thereafter, the petitioner preferred an appeal before the Joint Commissioner of State Tax (Appeal) under section 107 of the JGST Act on being aggrieved by the order dated 16.01.2019 and demand notice issued under GST DRC-07. The Joint Commissioner of State Tax (Appeal) Ranchi after hearing the petitioner's counsel and Departmental Officials, modified the order dated 16.01.2019 as detailed in order issued vide memo no. 678 dated 27.08.2019 (Annexure 8 to the writ petition). The order of the Joint Commissioner is self-explanatory and legally justifiable. In view of the statement made it is apparent that the demand notice issued in Form GST APL- 04 is legally payable by the petitioner. Also, it is categorically specified that the petitioner had utilized the ITC to set off its liabilities. 6. Mr. Ranjan Kumar, learned counsel for the respondent-Bank submits that the action of the respondent-Bank for holding the sum against the petitioner was in view of the several notices issued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equity which has no role in matters of taxation. 14. In the case of UOI v. Madhumilan Syntex Pvt. Ltd. reported in (1988) 3 SCC 348 it is held by the Hon'ble Apex Court that power under the statute cannot be taken away by consent of the parties. In that case the Hon'ble Apex Court was seized with interpretation of Section 11A of the Central Excise Act, 1944 which is pari materia to Section 74 of the JGST Act, hence, the ratio of the said judgment would squarely apply to the these cases. 15. As we are of the considered view that the impugned show cause notice in both the cases does not fulfill the ingredients of a proper show-cause notice and thus amounts to violation of principles of natural justice, the challenge is maintainable in exercise of writ jurisdiction of this Court. Accordingly, the summary of show-cause notices dated 14.09.2018 issued in Form GST DRC-01 at Annexure- 4 (in both cases), the orders dated 25.02.2019 issued under section 74(9)of JGST Act (in both cases) and also the final orders dated 3.3.2021 passed after rectification at Annexure-11 (in both cases), are hereby quashed and set aside. Further, this Court in the case of M/s. Dinanath Hotels Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad disallowed purchase invoices amounting to Rs. 77,350.44 and had also disallowed claim for Credit of food products amounting to Rs. 11,47,823/. During course of hearing, learned counsel did not contested these two disallowances. However, the disallowance on transitional credit which was taken by the petitioner without having possession of declarations in Form JVAT 410 / 411 supporting the purchase invoices in terms of Section 140(3)(iii) of the JGST Act amounting to Rs. 3,02,985.10/- has been vehemently contested. In this regard it is seen that Form 410/411 is issued under Rule 35(4) of the JVAT Rules, to the selling dealer when it sells goods under Section 9(2), i.e., recovers tax at MRP from the purchasing dealer. This Form is in addition to the invoice issued by the selling dealer. Section 140(3)(iii) of the Act stipulates that an Assessee must be in possession of "invoices or other supporting documents". Therefore, invoices suffice the requirement of Section 140(3)(iii) and furnishing of JVAT 410/411 is not a requirement under Section 140(3)(iii). This Court in Brahmaputra Metallics v. State of Jharkhand, W.P.(T) No. 2775 of 2017, has held that JVAT 404 is not compulsory fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of medicine products / food products is admissible as tax under JGST Act, more particularly because it does not fall within any of categories specified under Section 17(5) of the JGST Act. Even otherwise, Section 174(2)(e) specifically provides that the repeal of the JVAT Act shall not affect any assessment proceedings / adjudication under the JVAT Act and that such proceedings shall be continued as if the JVAT Act has not been amended. This aspect of the matter has been dealt with by this Court recently in M/s. Usha Martin Ltd. v. Addn. Comm., Central CGST, W.P.(T) No. 3055 of 2022, wherein it has been held that- 18. The enumerated conditions under which the registered person shall not be entitled to avail of the credit of input tax are not one which are applicable to the case of the present petitioner. The show cause notice under which the instant adjudication proceedings were initiated is worded allege similar contraventions under the CEA, Finance Act, 1994 and the CCR as the previous show cause notices issued under the existing law against the petitioner relating to contravention of the C.E.A., Finance Act and C.C.R.. The adjudicating authority does not hold that the transi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as therefore not proper in the eye of law. 22. ... If proceedings for transition of CENVAT Credit alleged to be inadmissible is permitted to be carried under the C.G.S.T. Act, it may lead to uncertainty not only in the minds of the ordinary citizen but also in the minds of the Tax authorities. In some cases a jurisdictional proper officer under the C.G.S.T. Act may initiate proceedings under the provisions of the C.G.S.T Act for such contravention. In other cases the competent jurisdictional officer may initiate proceedings under the existing law that is the C.E.A. and Finance Act for the same contravention in view of the repeal and saving provisions under Section 174 of the C.G.S.T. Act. Such a course cannot be countenanced in law. As such, we are of the considered view that the initiation of proceedings by respondent no. 1 under section 73(1) of the C.G.S.T. Act, 2017 for alleged contravention of the C.E.A. and Finance Act, read with C.C.R. against the petitioner by filing TRAN-1 in terms of Section 140 of the C.G.S.T. Act for transition of CENVET Credit as being inadmissible under the existing law was beyond his jurisdiction. Consequently the Order in Original dated 30th Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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