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TMI Blog2020 (11) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... LE SRI JUSTICE C. PRAVEEN KUMAR AND HON BLE MS. JUSTICE J. UMA DEVI Petitioner and Advocate : C.V. Narasimham Respondent and Advocate : A. Radha Krishna ORDER: (Per the Hon ble Sri Justice C.Praveen Kumar) 1) The present Writ Petition came to be filed seeking the following relief: to issue a Writ of Mandamus, declaring the impugned Garnishee Notice C. No. V/05/04/Misc/2019-GST ARC, dated 26.08.2020, issued by the 1st Respondent as illegal, improper and incorrect . 2) The averments made in the affidavit, filed in support of the Writ Petition show that, the Petitioner is duly registered under the Companies Act and doing business of manufacturing and sale of alcoholic and non-alcoholic beverages, ethanol etc. The Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70/- towards CGST, ₹ 1,56,94,370/- towards SG/UT GST and ₹ 8,76,886/- towards cess under Section 122(1) of the CGST Act / AP GST Act. 6) The case of the Petitioner is that, he has discharged the tax liability of ₹ 4,18,42,306/- through DRC-03 and also through GSTR-3B return, and intimated the details of payment to 2nd Respondent, vide letter, dated 10.08.2020. 7) Later, the Petitioner addressed a letter, dated 19.08.2020, to 2nd Respondent intimating that he is not liable to pay Cess since none of the outward supplies of the Petitioner fall within the ambit of cess and the amount of ₹ 8,78,836/- was inadvertently mentioned in Cess column of the returns instead of IGST Column. A Writ Petition came to be filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,76,02,936 - - - 1,76,02,936 3 Jan 20 to Jun 20 4,67,33,831 29,11,785 - 54,800 4,97,00,416, Total 6,52,13,653 1,34,73,468 4,27,19,192 54,800 12,14,61,113 11) The Counsel pleads that, to impose penalty under Section 122 of CGST Act, the procedure under Section 73 and 74 is required to be followed. It is further averred that, without giving any opportunity or notice about imposing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal shall be within three [03] months from the date of communication from the said Order, and the amount to be paid for admitting the appeal would be 10% of the remaining amount of tax in dispute arising from the said order. 16) The Assessment Order came to be passed on 13.08.2020, thereby the Petitioner had three months time for preferring the appeal, but, without waiting for the said period, the impugned Garnishee Notice came to be issued, on 26.08.2020. 17) Insofar as the recovery for the period January 2019 to December 2019 is concerned, notice intimating the discrepancy in the return came to be issued in Form GSTR ASMT-10, on 28.07.2020, wherein, the Petitioner was directed to explain the reasons for the discrepancies contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further Cess is payable and that, the recovery proceedings are initiated without any authority of law. Without considering the same, the 1st Respondent issued the Garnishee Notice directing the 4th Respondent to recover an amount of ₹ 1,05,61,683/-. It is pleaded that, the said action is against legal position of CBIC Circular No. 129/48/2019-GST, dated 24.12.2019. 20) Having regard to all the circumstances referred to above and as the Garnishee Notice came to be passed without hearing, the Writ Petition is allowed setting aside the impugned Garnishee Notice C.No. V/05/04/Misc/2019-GST ARC, dated 26.08.2020, issued by the 1st Respondent, however, leaving it open to the authorities to proceed in accordance with law. No Order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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