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TMI Blog2024 (3) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... an ad-interim relief, and direct respondents not to take any coercive action against the petitioner. (c) Any other and further relief deemed just and proper by granted in the interest of justice." [2] The brief facts leading to filing of the present petition can be stated as under: [2.1] The petitioner is a partnership firm concern having its registered office and principal place of business at 2/3710, Navsari Bazar, Main Road, Sagrampura, Surat-395002, Gujarat. [2.2] The petitioner engaged in the business of supply of "Fireworks, Signaling flares, rain rockets, fog signals and other pyrotechnic articles" falling under HSN: 3604 and is duly migrated under CGST / GGST Act vide GSTN as 24AAVFS3958EIZQ. [2.3] On 31st October 2018 and 1st November 2018, a search proceeding under Section 67(2) of the CGST / GGST Act has been conducted by the officers of the CGST Department at 8 business premises of the petitioner situated at Surat. The CGST has issued the prohibition order with respect to the stock kept at premises registered as additional place of business. [2.4] The petitioner was also carrying its business from the premise situated at 2/3711 and 2/3713, Navsari Bazar, Main R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs.50,38,400/- from Rs.49,07,735/- and thereby, raised evasion of tax to Rs.9,06,912/- from Rs.8,83,392/-. [2.9] A notice for personal hearing was received by the petitioner on 9th June 2020 directing, inter alia, to remain present on 19th June 2020. [2.10] The petitioner, vide its letter dated 19th June 2020, requested the learned Assistant Commissioner to postpone the hearing till 30th June 2020 in view of the pandemic situation due to COVID-19 and also requested the learned Assistant Commissioner to revalue the seized goods. [2.11] That again on 29th June 2020, the petitioner received notice from the department directing, inter alia, to remain present on 7th July 2020. Pursuant to the said notice, the petitioner submitted a detailed reply 6th July 2020. [2.12] Again, on 20th August 2020, the petitioner was in receipt of the notice dated 5th August 2020, wherein the petitioner was asked to remain present on 11th August 2020. Thus, the said notice was received by the petitioner after the date of personal hearing and thereby, the petitioner could not remain present before the learned Assistant Commissioner. [2.13] Again, on 27th March 2021, the petitioner has received notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of filing an appeal under the GST and the payment for the pre-deposit must be done through Electronic Credit Ledger only. [5] Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court under Article 226 of the Constitution of India with the aforesaid reliefs. [6] We have heard the learned advocate Mr. Avinash Poddar for the petitioner and learned advocate Mr. Utkarsh Sharma for the respondent. [7] At the outset, learned advocate Mr. Poddar for the petitioner pointed out that vide circular dated 6th July 2022 issued by the GST Policy Wing, Central Board of Indirect Taxes and Customs, Ministry of Finance, Government of India, it has been clarified that payment of pre-deposit can be made by utilizing the Electronic Credit Ledger (ECL). Learned advocate Mr. Poddar further relied upon the judgement passed by the Hon'ble Bombay High Court in the case of Oasis Realty vs. The Union of India and others (Writ Petition No.23507 of 2022 decided on 16th September 2022), wherein the Hon'ble Bombay High Court, having considered the provisions of the Act, held that the amount of ITC available in the Electronic Credit Ledger can be used towards payment of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards output tax under the MGST Act or IGST Act subject to certain restrictions or conditions that may be prescribed. Sub-rule (2) of Rule 86 of MGST Rules provides for debiting of the Electronic Credit Ledger to the extent of discharge of any liability in accordance with the provisions of Section 49 of the MGST Act. Further, output tax in relation to a taxable person is defined in Clause (82) of Section 2 of MGST Act as the tax chargeable on taxable supply of goods or services or both but excludes tax payable on reverse charge mechanism. Therefore, any payment towards output tax, whether self-assessed in the return or payable as a consequence of any proceeding instituted under the MGST Act can be made by utilisation of the amount available in the Electronic Credit Ledger. Hence, a party can pay 10% of the disputed Tax either using the amount available in the Electronic Cash Ledger or the amount available in the Electronic Credit Ledger. 11. Ms. Chavan relied upon an order of the High Court of Orissa at Cuttack in M/s Jyoti Construction Vs. Deputy Commissioner of CT & GST 2021(10) TMI 524 to submit that the amount in the credit ledger cannot be used to pay the 10% required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d person. 5. It is further reiterated that as output tax does not include tax payable under reverse charge mechanism, implying thereby that the electronic credit ledger cannot be used for making payment of any tax which is payable under reverse charge mechanism. 7. Whether the amount available in the electronic credit ledger can be used for making payment of any liability other than tax under GST Laws? As per sub-section (4) of section 49, the electronic credit ledger can be used for making payment of output tax only under the CGST Act or the IGST Act. It cannot be used for making payment of any interest, penalty, fees or any other amount payable under the said acts. Similarly, electronic credit ledger cannot be used for payment of erroneous refund sanctioned to the taxpayer, where such refund was sanctioned in cash. 8. Whether the amount available in the electronic cash ledger can be used for making payment of any liability under the GST Laws? As per sub-section (3) of Section 49 of the CGST Act, the amount available in the electronic cash ledger may be used for making any payment towards tax, interest, penalty, fees or any other amount payable under the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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