9911796707
TMI Blog2020 (9) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantees and the dues paid by the petitioner, the amount would be ₹ 7,80,88,745.00 (₹ 4,73,26,512.00 + ₹ 3,07,62,233.00) which amount is now with the respondents as against demand and penalty of ₹ 4,73,26,512.00. From the above, it is evident that an amount of ₹ 3,07,62,233.00 (₹ 7,80,88,745.00 ₹ 4,73,26,512.00) is lying in excess with the respondents. Even if the appeals filed by the petitioner under section 112 of the CGST Act are dismissed, petitioner would be required to pay a further amount of ₹ 1,65,64,279.00 only whereas respondents are holding onto an amount of ₹ 3,07,62,233.00 of the petitioner much in excess of the dues. There is provision for filing further appeal to the appellate tribunal under Section 112. As per sub-section (1), any person who is aggrieved by an order passed against him under Section 107 or by the revisional authority under Section 108 may prefer appeal to the appellate tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to the aggrieved person. As per sub-section 8(b), no appeal shall be filed under subsection (1) unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is that it is a dealer registered under the Central Goods and Services Tax Act, 2017 (briefly the CGST Act hereinafter) and Karnataka Goods and Services Tax Act, 2017. It is a private limited company engaged in the business of supplying components to the wind energy industry. In the course of its business petitioner had supplied capital goods i.e., blade moulds from its Bangalore unit in Karnataka to its Halol unit in Gujarat vide tax invoice dated 5th August, 2018. Being an inter-state supply of goods, it was a taxable transaction. Value of the goods as per invoice was ₹ 13,14,62,520.00 and integrated goods and service tax (IGST) payable thereon at the rate of 18% was ₹ 2,36,63,256.00. The goods were being transported by four vehicles which were intercepted by respondent No.4 on 11th October, 2018 at Solapur in the State of Maharashtra. Taking the view that the e-way bills were faulty and undervalued, orders of detention were passed by respondent No.4 under Section 129 of the CGST Act on 17th October, 2018. Simultaneously, demand notices dated 17th October, 2018 were issued levying IGST of ₹ 59,15,814.00 and an equivalent amount of penalty for each of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CGST Act has not yet been constituted in the State of Maharashtra. However, as a pre-condition for filing of appeals petitioner made payment of 20% of the IGST amount as pre-deposit under Section 112(8) of the CGST Act. This amount came to ₹ 47,32,651.00. 10. Since no appellate tribunal under Section 112 of the CGST Act has been constituted in the State of Maharashtra and being aggrieved by the encashment of the bank guarantees as above, petitioner has approached this court by filing the present writ petition seeking the reliefs as indicated above. 11. Respondent No.4 in his affidavit has stated that when a vehicle carrying taxable goods is detained under Section 129, the owner of goods has the option to either pay the amount of tax in cash and equal amount of penalty or he can furnish bank guarantee for such amount to ensure that the vehicle can continue its onward journey. Referring to the bank guarantees furnished by the petitioner it is stated that those had validity till 31st March, 2019. Petitioner was bound to discharge its liabilities before 31st March, 2019 and having not discharged the same till 27th March, 2019 which was in immediate proximity to the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) This action of the respondents is prima facie contrary to the decision of this Court in Mahindra and Mahindra Ltd. vs. Union of India 59 ELT 505. 4) Mr. Sonpal, learned Special Counsel for the respondents-State, seeks time to take instructions and file an affidavit, if so required. At his request, the petition is adjourned to 19th July 2019 at 3.00 p.m. Parties are put to notice that the petition is likely to be disposed of finally on the next date. 14. Thereafter, on 19th July, 2019, rule was issued with the observation that since the issue involved is within a narrow compass, petition would be disposed of on the next date failing which grant of interim relief would be considered. 15. On 10th January, 2020, this court noted the grievance of the petitioner, further recording the submission of the petitioner that petitioner was willing to secure the respondent authorities for the balance amount of ₹ 1,65,64,279.00 on refund of the amount covered by the encashed bank guarantees. Court directed the respondents to place on record the amount which according to the respondents is payable by the petitioner in case petitioner fails in his challenge after ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h by this court. He submits that respondent No.4 has appropriated an amount much more than the demand and penalty put together which is required to be refunded back to the petitioner with applicable interest. Petitioner had paid the IGST and thereafter 30% of the said amount at two stages; firstly 10% while filing the first appeals before the first appellate authority and secondly, 20% at the stage of filing further appeals before the appellate tribunal under Section 112 of the CGST Act and which unfortunately in the State of Maharashtra has not yet been constituted. In the light of the above, he prays for return of the amount covered by the eight bank guarantees and further submitted that petitioner would secure the interest of the revenue by providing fresh bank guarantees to cover the balance amount of penalty imposed. 19. Learned special counsel representing respondent Nos.1,3 and 4 submits that the bank guarantees had to be invoked under special and compelling circumstances as validity of those were expiring on 31st March, 2019. The above action was done bonafidely to protect the interest of the revenue. 20. Mr.Jetly submits that Central Government has no role to play in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26. Section 107 of the CGST Act provides for appeals to appellate authority. Sub-section (1) says that any person who is aggrieved by any decision or order passed under the CGST Act may appeal to the prescribed authority within three months from the date on which the impugned decision or order is communicated. Sub-section (6)(b) provides that no such appeal shall be filed unless appellant has paid a sum equal to 10% of the remaining amount of tax in dispute arising from the impugned decision or order. There is provision for filing further appeal to the appellate tribunal under Section 112. As per sub-section (1), any person who is aggrieved by an order passed against him under Section 107 or by the revisional authority under Section 108 may prefer appeal to the appellate tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to the aggrieved person. As per sub-section 8(b), no appeal shall be filed under subsection (1) unless the appellant has paid a sum equal to 20% of the remaining amount of tax in dispute, in addition to the amount paid under sub-section (6) of Section 107. Subsection (9) clarifies that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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