Tax collected at the stage of detention can be claimed as GST refund if excess tax is paid in regular returns

[Bimal jain]

The Hon’ble Madras High Court in M/S. CHETNA STEEL TUBES PRIVATE LIMITED VERSUS GOODS AND SERVICE TAX NETWORK (GSTN) , CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, ASSISTANT COMMISSIONER OF GST (ZONE-1) , TAMIL NADU - 2024 (8) TMI 949 - MADRAS HIGH COURT dismissed the writ petitions challenging a circular that directed tax liability creation under Section 129 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) and held that tax collected at the detention stage can be claimed as a refund if excess tax is paid in regular returns.

Facts:      

M/s Chetna Steel Tubes (P.) Ltd. (“the Petitioner”) has filed the present writ petitions challenging the Circular No. 41/15/2018 GST dated April 13, 2018 (“the Impugned Circular”).

The Petitioner contended that they cannot be burdened with tax liability twice, once at the stage of detention to get their detained goods released under Section 129 of the CGST Act and other at the stage of payment of tax in the regular returns in Form GSTR-3B. Therefore, there is no question of creation of an automatic tax liability and hence the Petitioner has also challenged the demand notices dated April 28, 2021, and April 29, 2021 (“the Impugned Notices”) in the present petition.

Issue:

Whether tax collected at the stage of detention can be claimed as refund if excess tax is paid in regular returns?

Held:

The Hon’ble Madras High Court in M/S. CHETNA STEEL TUBES PRIVATE LIMITED VERSUS GOODS AND SERVICE TAX NETWORK (GSTN) , CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, ASSISTANT COMMISSIONER OF GST (ZONE-1) , TAMIL NADU - 2024 (8) TMI 949 - MADRAS HIGH COURT, held as under:

• Noted that, as far as the period prior to January 1, 2022, is concerned, it is clear that the Petitioner whose goods are detained under Section 129 of the respective GST enactments has to bear the applicable tax and penalty. Post January 1, 2022, the law has been amended, whereby only the penalty is imposable at 200% of the tax.
• Observed that, the tax is being levied twice by virtue of the impugned circular and is contrary to Section 129 of the respective GST enactments cannot be countenanced. The purpose of Section 129 of the CGST Act was to recover tax on such goods in transit, where removal of such goods fell short of any of the statutory compliance required for removal of goods. Therefore, tax was to be collected to the extent of tax that was payable in the returns at the stage of detention of such detained goods. Tax is to be debited from Petitioner's electronic credit account maintained under the respective GST Acts.
• Held that, if a supplier's goods were detained and subjected to tax and penalty under Section 129 of the CGST Act as it stood prior to amendment, such a supplier is entitled to claim refund of the excess tax, if any, paid in the returns filed in Form GSTR-3B. Therefore, the apprehension expressed in the writ petitions misplaced and unwarranted. Hence, these writ petitions were dismissed. Accordingly, these writ petitions were dismissed.

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