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TMI Blog2020 (8) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Respondent had denied the benefit of ITC to the above buyers amounting to Rs. 41,82,198/-, pertaining to the period w.e.f. 01.07.2017 to 31.08.2018 and had thus indulged in profiteering and violation of the provisions of Section 171 (1) of the above Act. 2. This Authority after careful consideration of the Report dated 28.11.2018 had issued notice dated 07.12.2018 to the Respondent to show cause why the Report furnished by the DGAP should not be accepted and his liability for violation of the provisions of Section 171 (1) should not be fixed. After hearing both the parties at length this Authority vide its Order No. 34/2019 dated 24.05.2019 had determined the profiteered amount as Rs. 41,82,198/- as per the provisions of Section 171 (2) of the above Act read with Rule 133 (1) of the CGST Rules, 2017 pertaining to the period from 01.07.2017 to 31.08.2018 and also held the Respondent in violation of the provisions of Section 171 (1). 3. During the course of the proceedings the Respondent had accepted the findings of the DGAP's Report dated 28.11.2018 and vide his submissions dated 11.02.2019 supplied details of the ITC benefit passed on to the 125 buyers including the Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, the said difference was less than 1% as the methodology adopted by this Authority was not available to him at the time of implementation of the GST. He has also submitted that he had immediately accepted the amount which had been determined by this Authority and it was paid to all the eligible buyers and proof of payment was also submitted to this Authority vide his letter dated 11.02.2019 which also depicted his bonafide intentions to comply with the provisions of Section 171 of the above Act. He has further submitted that no penalty should be levied as he had voluntarily agreed to pass on the benefit of ITC as per the provisions of the law. 7. The Respondent has also argued that for imposing penalty, there should be an intention to evade payment of tax or there should be suppression or concealment. He has further argued that the penal provisions were only a tool to safeguard against the contravention of the rules, however, he had always been under the bonafide belief that he had not violated the provisions of Section 171 of the CGST Act, 2017 and therefore, no penalty was imposable on him. In support of his above argument the Respondent has placed reliance on the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) NIRC Ltd. v. CCE 2007 (209) ELT 22 (Tri. - Del.) = 2006 (12) TMI 12 - CESTAT, MUMBAI. d) Chemicals & Fibres of India Ltd. v. CCE 1988 (33) ELT 551 (Tri.) = 1983 (7) TMI 193 - CEGAT, NEW DELHI. 10. The Respondent has further claimed that Section 122 (1) (i) provided for imposition of penalty in the case of issuance of incorrect or false invoice. To determine what will be an incorrect false invoice, reliance has been placed on the dictionary meaning of the term 'incorrect' and 'false' as has been mentioned below:- "Oxford Dictionary: 'incorrect'- not in accordance with particular standards or rules false' - not according with rules or law. Black's' law Dictionary: 'False' - Untrue; erroneous; deceitful; contrived or calculated to deceive and injure. Unlawful. In law, this word means something more than untrue; means something designed untrue and deceitful and Implies an intention to perpetrate some treachery or fraud. Hatcher v. Dunn, 102 Iowa, 411, 71 N W. 343, 30 L. lt. A. GS9; Mason v. Association, 18 U. C. C. P. 19; Batterman v. Ingalls, 48 Ohio St. 408. 28 N. 10. 108. The Malor Law Lexicon by P. Ramanatha Aiyar 4th Edition 2010: 'False' - Erroneous, untr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voice with regard to any such supply; xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx he shall be liable to pay a penalty of ten thousand rupees or an amount equal to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short collected or collected but not paid to the Government or input tax availed or passed on or distributed irregularly, or the refund claimed fraudulently, whichever is higher." 14. It is apparent from the perusal of Section 122 (1) (i) that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefits of tax reduction and ITC. It only provides for imposition of penalty for not issuing an invoice or for issuing an incorrect or false invoice in respect of any supply of goods or services or both. Perusal of proviso attached to this Section also shows that it provides for imposition of penalty of ten thousand rupees or equal to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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