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TMI Blog2025 (5) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... l the credit available with him under IGST head, wrongly claimed under Cess, pertaining to 2017-18 amounting to Rs. 32,53,615/-. 2. According to the petitioner, the petitioner is a Private Limited Company having its business in the State and is duly registered with the Goods and Services Tax Department. The petitioner while availing the credit available with it under IGST and Cess has inter-mingled the heads and availed the credit of head 'Integrated Goods and Service Tax (for short 'IGST') under the head 'Cess' and vice-versa. The wrongful availment of credit created a situation whereby the less credit had been availed under 'IGST' head and excess credit had been available under the head 'Cess'. The petitioner migrated from the erstwhile tax regime to the GST regime and got registered with the respondent authorities by availing GSTIN number. The petitioner was an authorized dealer of Ford India Pvt. Ltd. and was engaged in selling of motor cars, motor vehicles and the part thereof. Apart from this, the petitioner was also engaged in rendition of repair, reconditioning and related services of vehicles. 3. The petitioner at the time of filing GSTR-3B for the month of February, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed 'Cess' credit along with interest and penalty. 7. The further case of the petitioner is that respondent No. 3 proceeded with its action in furtherance of the Final Audit Report and issued a summary of show cause notice in Form GST DRC-01 dated 11.08.2023 whereby, inter-alia, demand of Rs. 31,67,808/- was proposed to be made from the petitioner under 'Cess' on account of excess claim of credit, without considering the fact that it was not actually claimed in excess, rather this was credit of IGST inadvertently claimed under the 'Cess' head. 8. The petitioner duly contested the show cause notice by filing a detailed reply dated 09.09.2023 contesting the various demands. It was submitted that the petitioner had not availed any excess credit of 'Cess' and in fact, it had taken less credit if overall effect of IGST and Cess is taken into consideration. It was also submitted that the alleged excess claim had occurred due to clerical mistake whereas it was not an actual case of excess claim with an intent to take excess credit. 9. It is also the case of the petitioner that respondent No. 3 proceeded with adjudication proceedings and vide impugned order dated 29.12.2023 has confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice, the complete audit report has been furnished to the petitioner, therefore, no prejudice has been caused to the petitioner and the petition is liable to be dismissed. 12. We have heard learned counsel for the parties and have also gone through the record carefully. 13. No doubt the notice was required to be issued under Section 73 (1) or 74 (1) of the Act by the proper officer after issuing a summary of notice along-with main show cause notice to the petitioner. However, the issue herein is whether the supply of the audit report would be substantial compliance of the procedure? 14. Learned counsel for the petitioner would argue that once the statutory rules provide that an act must be done in a prescribed manner and in no other way, then the conditions of rules and prescribed procedure must be satisfied and there must be application of mind. Meaning thereby, once methodology for doing a particular act is provided under the statute, Rules, regulations, instructions etc. then, such act must be done in the manner and way prescribed alone and in no other way. In support of his submissions, he has placed reliance on the judgments of this Court passed in CWP No.4632 of 2024 titl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er GSTR-9. Para Discrepancies Remarks para 3 21.1 Excess availment of ITC in TRAN-1 amounting to Rs.27,30,182/- During the course of audit, it was observed that auditee had availed ITC of Rs. 63,48,336/- in TRAN-1 under Section 140. While going through the record as submitted by the auditee it has been observed that auditee has availed following ITC which is in contravention of Section 140 (3) and which is liable to be reversed along with applicable interest and penalty under Section 74 of the Act: Sr no Particulars Relevant Provision Total Availed CGST ITC Liable to be Reversed 1 Total Tran-1 ITC Availed 63,48,336 a Invoices not available/ provided 140 (3) (iii) 3,62,975 b Invoices older than 30/06/2016 140 (3) (iv) 5,23,548 c Invoices older than 30/06/2016 + Invoices not in the name of Saluja -Himachal Pradesh (Solan / Mandi) 140 (3) & 140 (3) (iv) 2,40,419 d Invoices not in the name of Saluja-Himachal Pradesh (Solan / Mandi) 140 (3) 2,52,670 e CST ITC Not Allowed 140 (3) & Explanation 1 7,04,750 f Cess (MV Cess & Infra Cess) ITC Not Allowed 140 (3) & Explanation 1 6,45,820 &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cash basis due to delay in filing of returns for the month of August & September, 2017, which is liable to be recovered under Section 50 of HPGST Act, 2017. The auditee is therefore, required to reverse/pay the above said ITC along with interest and mandatory penalty as calculated below: Type IGST CGST SGST CESS Interest - 38 3,181 1,292 Total 38 3,181 1,292 Amount payable against the para was CGST Interest: 38/- + SGST Interest: 3181/- + Cess Interest: 1292/-, while as against the same following amount has been paid by RTP in DRC-03: CGST Interest: 3,181/- + SGST Interest: 1,292/- + Cess Interest: NIL. After considering the above payment revised payment required is as follows: Type IGST CGST SGST CESS Interest - - 1,889 1,292 Total - - 1,889 1,292 18. Once, it is concluded that the petitioner is fully aware of the case it is required to meet, then, we have no hesitation to conclude that the petitioner is mainly using this argument as a device to stall the proceedings. 19. Even otherwise, the petitioner is required to show and establish that non-furnishing of the notice has caused it prejudice and that this has prevented it from effectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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