TMI Blog2024 (1) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2022 dated 10.11.2022 [ 2022 (11) TMI 1266 - JHARKHAND HIGH COURT ], wherein this Court held that the repeal of the existing laws upon coming of the G.S.T. law regime did not leave a vacuum as to past transactions which were not closed. The repeal and saving clause (e) under Section 174(1) of the C.G.S.T. Act allowed such legal proceedings to be instituted in respect of inchoate rights except rights under transactions which were past and closed. As a matter of fact, section 174 of the JGST Act deals with repeal and saving provision, wherein the JVAT Act, 2005, except in respect of goods included in Entry 54 of the State List of the Seventh Schedule of the Constitution, Jharkhand Entertainment Tax Act, 2012, Jharkhand Advertisement Tax Act, Jharkhand Entry Tax on consumption or use of goods Act, 2011 were repealed - However, section 174(2)(e), saves any investigation, inquiry, verification, assessment, adjudication and any other legal proceedings as if these Acts have not so amended or repealed. Thus, the GST authorities are incorrect in assuming jurisdiction and initiating a proceeding under the provision of the JGST Act alleging therein that the Input Tax Credit so transi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE RONGON MUKHOPADHYAY AND HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Ms. Amrita Sinha, Adv. For the State : Mr. Ashutosh Anand, AAG-III Per Deepak Roshan, J. The instant application has been preferred for the following reliefs:- (i) For a declaration thereby declaring that input tax credit amounting to Rs. 26,62,041.24 availed by the petitioner under the Pre-Goods and Services Tax regime and rolled over to the Goods and Services Tax regime is proper and disallowance of the same by the respondent No. 4 is arbitrary, unreasonable, without jurisdiction and violation of Article 14, 19(1)(g) and 300A of the Constitution of India. (ii) For quashing and setting aside DRC-07 dated 23.08.2018 (Annexure-3) issued by respondent No. 4 raising a demand of Rs. 35,13,894.43 issued without passing of adjudication order and in violation of Principle of natural justice. (iii) For a quashing and setting aside show cause notice being reference no. 1519 dated 21.07.2018 (Annexure-2) being vague in nature as it does not fulfill the ingredients of proper show cause notice and is issued in excess of its jurisdiction. (iv) For refund of an amount of Rs. 19, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The case of the petitioner is that from the Summary of Show Cause Notice, it is evident that the same is not in a proper format as the date, time and venue; nothing is mentioned therein, nor the irrelevant sections have been struck down. 4. Soon thereafter, the Petitioner was in receipt of FORM GST DRC-07 Summary of the Order dated 23.08.2018 (Annexure-3) imposing tax to the tune of Rs. 35,13,894.43 being inclusive of penalty and interest. Immediately on 16.11.2018, the petitioner applied for the entire order-sheet and for the copy of adjudication order on the basis of which FORM GST DRC-07 has been issued. However, till date the Petitioner has not been provided with any adjudication order and has been informed that no adjudication order has been passed in the present matter. The said fact is also admitted by the Respondent department in their Counter Affidavit at para-15. Further, on 19.01.2021 an amount of Rs. 19,08,880/- has been suo-moto debited from the credit ledger of the Petitioner. 5. Ms. Amrita Sinha, learned counsel for the petitioner in course of arguments has raised following issues:- (i) The respondent GST department is not correct in assuming jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted fact that the Petitioner is engaged in trading business, who resales Iron and Steel goods and thus section 18(8)(xviii) is not applicable upon the Petitioner. For ready reference section 18(8)(xviii) is quoted herein below:- Section 18(8)-No input tax credit under sub-Section (1) shall be claimed or be allowed to a registered dealer- Section 18(8)(xviii) -In respect of goods consumed or burnt up in course of manufacturing process and are not transferred into or existent in the finished product whether as goods or in any other form. She contended that the Respondent in its Counter Affidavit at para 17 has also admitted the fact that the Petitioner is a trader and not a manufacturer and thus has tried to escape from its wrong by stating that inadvertently instead of mentioning 18(8)(ii) has wrongly typed 18(8)(xviii), being a typographical error. It has been submitted that it is a settled principle of law that one cannot go beyond the Show Cause Notice and merely by stating that it is typographical error the wrong provision under which Show Cause Notice has been issued cannot be cured. It will change the very nature of show cause notice. It is further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 117 needs verification, as such the proceeding under Section 73 of the JGST Act was initiated and accordingly the above Form GST DRC-01 was issued to the petitioner. He further submits that Form GST DRC-01 provided the summary of the Show Cause and the ground for initiation of proceeding under Section 73, accordingly, the petitioner was asked to produce evidences to justify the claim made in Form GST TRAN-1 under Section 140(2) read with Rule 117 (2)(a) read with Section 140(5) read with Rule 117 (2)(c). He contended that said Form GST DRC-01 mentioned about the notification LG-35/2015-99 and its translated version in LG-35/2015-100 and having reference to same, the DRC-01 was issued. He further submits that so far as the judgments relied upon by the learned counsel for the petitioner is concerned, the said judgments are also not applicable in this case and he reiterates that the petitioner should avail the opportunity of appeal. 8. Heard learned counsel for the parties and also gone through the averments made in the respective affidavits and the documents annexed therein. So far as issue no.(i) is concerned; the said issue is squarely covered by the decision of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed. 21. It provides that the repeal of the existing laws shall not affect any investigation, inquiry, verification (including Scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment as aforesaid and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed. In substance, investigations, inquiry, verification, assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on order passed thereto is non-est in the eyes of law. The aforesaid issue has already been settled by the decision of this Court in the case of M/s NKAS Services Private Limited v State of Jharkhand Ors. (W.P.(T) no.2444 of 2021 dated 06.10.2021) reported in 2021-VIL-732-Jhr in Para- 13 and 14 , wherein this Court has held that the adjudication order is non-est in the eyes of law, as the same has been passed without issuance of proper Show Cause Notice and thus amounts to violation of Principles of Natural Justice. The aforesaid issue was further affirmed and adjudicated by this Court in the case of M /s Godavari Commodities Ltd. being W.P.(T) no. 3908 of 2020 dated 18.04.2022, wherein the specific case of the Petitioner was that no Show Cause Notice was ever issued to the Petitioner and even in the Summary of Show Cause Notice no timeline was provided as to when the Petitioner is to submit its reply. This Court in the facts of the said case has quashed and set aside the summary of Show Cause Notices and Summary of order being FORM GST DRC-07, by observing therein that the department in stark disregard to the mandatory provision of the GST Act and well-known procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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