TMI Blog2023 (11) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, ITC was availed by the petitioner. Thereafter, on scrutiny, neither M/s Krishna Trading Company was found to be in existent, nor the persons, who issued the bilty and weighment slip, was found in existent. Once the very basis to show that the movement of goods has taken place was doubted, the petitioner, apparently, failed to prove actual physical movement of goods. From the perusal of the record shows that the petitioner failed to discharge its onus to prove and establish beyond doubt the actual transaction, actual physical movement of goods as well as the genuineness of the transactions and as such, the proceedings have rightly been initiated against the petitioner under section 74 of the GST Act. Thus, no interference is called fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been drawn that the transactions shown by the petitioner were bogus, fictitious and fake and thereafter, impugned order dated 22.11.2021 was passed for the month of May to December, 2018 imposing tax and penalty along with interest upon the petitioner amounting to Rs. 45,21,097.75/-, against which the petitioner preferred an appeal before the respondent no. 2, but vide impugned order dated 01.06.2022, the appeal of the petitioner has been rejected. 5. He further submits that the petitioner, being a registered dealer, submitted all documentary evidence, such as, tax invoice, e-way bills, bilty, before and after the loading of goods weighment slips, etc. and payments were made through banking challen, but still the authorities below hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, decided on 26.10.2017], Commissioner of Trade Tax, Delhi Vs. Arise India Limited [SLP (Civil) No. 36750/2017, decided on 10.01.2018], M/s Onyx Designs Vs. Assistant Commissioner of Commercial Taxes Another [Writ Petition No. 17989/2018, decided on 17.06.2019] and M/s LGW Industries Limited Others Vs. Union of India Others [WPA No. 23512/2019, decided on 13.12.2021]. He prays for allowing the writ petition. 6. Per contra, learned ACSC supports the impugned order and submits that the weighment slips, bilty, which were submitted by the petitioner in support of its claim showing actual movement of goods, were not genuine, but fake documents as on inquiry being made, neither the transport company nor the place where the weighment was made wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Krishna Trading Company was found to be in existent, nor the persons, who issued the bilty and weighment slip, was found in existent. Once the very basis to show that the movement of goods has taken place was doubted, the petitioner, apparently, failed to prove actual physical movement of goods. 9. The authorities have categorically recorded the fact that the petitioner failed to show actual movement of goods and therefore, the judgements cited by the petitioner, as referred to hereinabove in the preceding paragraphs, are of no aid to the petitioner. The petitioner also could not distinguish the judgements of the Apex Court in M/s Ecom Gill Coffee Trading Private Limited (supra). 10. The Apex Court in M/s Ecom Gill Coffee Trading Privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITC. In fact, the genuineness of the transaction has to be proved as the burden to prove the genuineness of transaction as per section 70 of the KVAT Act, 2003 would be upon the purchasing dealer. At the cost of repetition, it is observed and held that mere production of the invoices and/or payment by cheque is not sufficient and cannot be said to be proving the burden as per section 70 of the Act, 2003. 11. Further, this Court in M/s Malik Traders (supra) has held as under:- 17. Patna High Court in the case of M/s Astha Enterprises (supra) has held as under :- 9. . It was held that the dealer who claims Input Tax Credit has to prove beyond doubt, the actual transaction by furnishing the name and address of selling dealer, details of the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs has rightly been initiated. 20. Further, the case law relied upon by the counsel for the petitioner of this Court in Ashish Trading Company (supra) is also of no aid to the petitioner as in that case in para 14, the Court has recorded a finding of fact that order of the first appellate authority is cryptic as no details were provided. But the facts of the present case is different as stated in previous paras and recent judgement of Apex Court in the case of Ecom Gill Coffee Tradiving Pvt. Ltd. (supra) is squarely applicable in the facts of the present case. 21. In view of the facts as stated above, no interference is called for by this Court in the impugned orders. The writ petition fails and is dismissed accordingly. 12. From the perusa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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