9911796707
TMI Blog2024 (10) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... d challenging the impugned order dated 18.07.2019 passed by the respondent no. 5 under section 130 read with section 122 of the UPGST Act as well as the impugned order dated 19.08.2023 passed by the first appellate authority, the respondent no. 4. 4. Learned counsel for the petitioner submits that the petitioner is a Limited Company and is engaged in the business of manufacture and sale of iron and steel. On 30.11.2018, an inspection/search under section 67 of the GST Act was conducted at the business premises of the petitioner by the SIB and proceedings under the GST Act were initiated by issuing notice. Thereafter, the impugned order dated 18.07.2019 has been passed. Aggrieved by the said order, the petitioner preferred appeal, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Pradeep Kumar (supra) has held as under:- "9. Recently, this Court in Writ Tax No. 1007 of 2022 (M/s Shree Om Steels Vs. Additional Commissioner Grade-2 and Another) along with connected cases has held in para nos. 10, 11, 12 & 13 as under:- "10. The issue in hand is covered by the judgement of this Court in Metenere Limited (supra), in which following observations have been made:- "22. From the perusal of the scheme of the Act and the statutory provisions what emerges is that Section 9 of the CGST is the charging section which provides for levy of tax on supplies of goods or services. Section 12 of the CGST Act provides for time on which the tax are to be paid and elaborates the "time of supply of goods" and Section 12 (2) clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Section 74 of the Act reads as under: Section 74 - Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful misstatement or suppression of facts. (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-mis-statement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under sub-section (1) pays the said tax along with interest payable under section 50 and a penalty equivalent to twenty-five per cent. of such tax within thirty days of issue of the notice, all proceedings in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions made at the bar, the following questions which arise for determination; (I). Whether tax can be assessed/ determined in exercise of powers under Section 130 of the GST Act? (II). Whether penalty can be levied only on the allegations that at the time of verification of goods, the goods in excess were found at the premises? (III). Whether the service of notice as claimed by the respondent satisfies the requirement contemplated under Section 169 of the GST Act? (IV). Whether the valuation of goods can be done on the basis of eye estimation alone and on the basis of production capacity and/ or the consumption of electricity etc? 11. The issue raised herein in Issue no.I is marked resemblance to facts referred in the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable. 15. On a plain reading of the allegations levelled against the petitioner with regard to the improper accounting of goods, the only stipulation contained in Clauses (ii) and (iv) of sub-section (1) of Section 130 can at best be invoked by the department, however, in the present case, even assuming for the sake of argument, that the goods were lying in excess of the goods in record, the case against the petitioner would not fall under Clause (ii) of sub-section (1) of Section 130 for the simple reason that the liability to pay the tax arises at the time of point of supply, and not at any point earlier than that. On a plain reading, the scope of Clause (ii) of sub-section (1) of Section 130 is that any assessee who is liable to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
