2022 (11) TMI 1266 - HC - GST

Validity of Show Cause notice issued under the GST Act instead to erstwhile Central Excise / Service Tax Laws - Recovery of wrongfully availed CENVAT Credit - transitional credit - disallowance of CENVAT credit carried forward by the petitioner by filing TRAN-1, in terms of Section 140 of the C.G.S.T. Act, 2017 - HELD THAT - From the chronology of facts borne from the pleadings on the record, it is not in dispute that the impugned order in original dated 30th March, 2022 passed under Section 73 (9) of the C.G.S.T. Act, 2017 relates to availment of CENVAT Credit which was allegedly inadmissible under the C.E.A. and Finance Act read with C.C.R. It is also not in dispute that no SCN or order in original has been passed under the existing law, i.e. the C.E.A. and Finance Act read with C.C.R. either at the time of filing of TRAN 1 or thereafter in respect thereof. The writ petition has been preferred purely on the question of legality and jurisdiction of Respondent No.1 to initiate a proceeding under Section 73 (1) of the C.G.S.T. Act for transition of CENVAT Credit which was allegedly inadmissible under C.E.A. and Finance Act read with C.C.R. The show cause notice under which the instant adjudication proceedings were initiated is worded allege similar contraventions under the CEA, Finance Act, 1994 and the CCR as the previous show cause notices issued under the existing law against the petitioner relating to contravention of the C.E.A., Finance Act and C.C.R. - the contraventions which have been alleged and the proceedings which have been initiated under Section 73 (1) of the C.G.S.T. Act are in relation to violation of the C.E.A. and Finance Act read with C.C.R. The gist of the imputation is that the petitioner could not claim the CENVAT credit in lieu of invoices raised by its Bokna mines as both of them were independent entities. Similar was the imputation in respect of the previous show cause notices issued under the existing law which are pending adjudication before the learned CESTAT or the Commissioner (Appeals) for different periods and in some of which the petitioner has already got a stay by the learned CESTAT. 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. Petitioners also admit that proceedings for availing CENVAT Credit which were allegedly inadmissible under the C.E.A., Finance Act, read with C.C.R., 2004 could have been initiated under the existing laws - the duty of the constitutional courts is to interpret the law and also to ensure that there is certainty about the law not only in the minds of the law enforcement agencies but also in the common person as to where he stands in the eye of law. If proceedings for transition of CENVAT Credit alleged to be inadmissible is permitted to be carried under the C.G.S.T. Act, it may lead to uncertainty not only in the minds of the ordinary citizen but also in the minds of the Tax authorities. In some cases a jurisdictional proper officer under the C.G.S.T. Act may initiate proceedings under the provisions of the C.G.S.T Act for such contravention. The Order in Original dated 30th March, 2022 passed by the respondent no. 1 being without jurisdiction cannot be sustained in the eye of law. The impugned adjudication proceedings and the order in original dated 30th March, 2022 are accordingly quashed. Petition disposed off.

Summary

Issues Involved:
1. Jurisdiction of the adjudicating authority under the CGST Act, 2017.
2. Validity of the proceedings initiated under Section 73 of the CGST Act, 2017.
3. Applicability of Section 174 of the CGST Act, 2017.
4. Transition of CENVAT Credit under Section 140 of the CGST Act, 2017.

Detailed Analysis:

1. Jurisdiction of the Adjudicating Authority under the CGST Act, 2017:
The petitioner challenged the jurisdiction of the respondent No. 1, Additional Commissioner, CGST & Excise, Jamshedpur, to decide upon the availment of CENVAT credit by the petitioner under the pre-GST regime. The petitioner argued that proceedings for wrongful availment of CENVAT Credit should have been initiated under the erstwhile Central Excise Act and Finance Act, not under the CGST Act. The court noted that the impugned order related to availment of CENVAT Credit allegedly inadmissible under the Central Excise Act and Finance Act read with CENVAT Credit Rules, 2004. It was determined that the adjudicating authority did not have jurisdiction under the CGST Act to decide on the availment of CENVAT Credit accrued under the previous regime.

2. Validity of the Proceedings Initiated under Section 73 of the CGST Act, 2017:
The petitioner contended that the proceedings under Section 73 of the CGST Act were initiated for alleged wrongful availment of CENVAT Credit, which should have been dealt with under the pre-GST laws. The court examined the provisions of Section 73 of the CGST Act, which deals with cases of tax not paid, short paid, or input tax credit wrongly availed or utilized. The court concluded that Section 73 of the CGST Act does not cover CENVAT Credit, which was part of the erstwhile regime. Therefore, the initiation of proceedings under Section 73 of the CGST Act was beyond the jurisdiction of the adjudicating authority.

3. Applicability of Section 174 of the CGST Act, 2017:
The court analyzed Section 174 of the CGST Act, which deals with the repeal and saving provisions. It was noted that the repeal of the existing laws (Central Excise Act, Finance Act, etc.) did not affect any investigation, inquiry, verification, assessment proceedings, adjudication, or other legal proceedings for recovery of arrears or remedy in respect of any duty, tax, surcharge, penalty, fine, interest, etc. The court emphasized that legal proceedings for inchoate rights could be continued under the existing laws as if they had not been repealed. Therefore, proceedings for wrongful availment of CENVAT Credit could still be initiated under the erstwhile laws.

4. Transition of CENVAT Credit under Section 140 of the CGST Act, 2017:
The court examined the provisions of Section 140 of the CGST Act, which allows for the transition of CENVAT Credit from the pre-GST regime to the GST regime. The petitioner argued that the CENVAT Credit transitioned under Section 140 was not inadmissible under the CGST Act. The court noted that the conditions under which a registered person is not entitled to take credit of any input tax are specified in Section 16(2) of the CGST Act. It was found that the show cause notice and the impugned order did not allege any contravention under Section 16(2) of the CGST Act but rather under the erstwhile laws. Consequently, the court held that the proceedings for transition of CENVAT Credit alleged to be inadmissible should be conducted under the existing laws, not under the CGST Act.

Conclusion:
The court quashed the impugned adjudication proceedings and the order in original dated 30th March, 2022, as being without jurisdiction. The respondent authorities were given the liberty to initiate proceedings under the provisions of the existing laws, i.e., Central Excise Act, 1944, Finance Act, 1994 read with CENVAT Credit Rules, 2004, against the petitioner for the relevant tax period in accordance with the law.