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TMI Blog2022 (5) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... ng provisions of Article 226/227 of the Constitution of India with the following prayers: "(a) A writ of and/or order and/or direction in the nature of Certiorari commanding the Opp.Parties to transmit and certify the records relating to Impugned Order dated 28.03.2022 under Annexure-1 so that the said Impugned Order dated 28.03.2022 under Annexure- 1 so that the said Impugned Order and all proceedings relating thereto may be set aside and/or quashed and conscionable justice might be rendered; (b) A writ of and/or order and/or direction in the nature of Mandamus commanding the Opp. Parties to not give any effect to and/or take any step whatsoever pursuant to and/or in furtherance of the Impugned Order dated 28.03.2022; (c) A writ of and/or order and/or direction in the nature of Prohibition commanding the Opp.Parties to forebear from giving any effect to and/or taking any step whatsoever pursuant to and/or in furtherance of the Impugned Order dated 28.03.2022; (d) Costs of any incidental to this application be paid by the Opp.Parties; (e) Such further or other order or orders be made and/or directions be given as would afford complete relief to the Petitioner." 3. The ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isha)], has been distributed by JSW Steel Ltd. GSTIN 27AAACJ4323N2ZF (in the State of Maharashtra) to other units of JSW Steel Ltd. located in the States of Tamil Nadu, Maharashtra and Karnataka. 4.2. Such a modality in claiming adjustment of unutilized input tax credit is objected to by the Revenue on the premise that such a device to facilitate other units of JSW Steel Ltd. located in other States to claim input tax credit arising in the State of Odisha is contrary to the statutory mandate. Therefore, the ingredients for initiating proceeding under Section 74 being satisfied, the Deputy Commissioner of State Tax has issued notice which culminated in demand of Rs.901,48,27,137/- [comprising tax to the tune of Rs.401,16,88,016/- and penalty of Rs.401,16,88,016/- and interest of Rs.99,14,51,105/- (up to 28th March 2022)]. 5. Mr. Arvind Datar, learned Senior Counsel appearing for the Petitioner-company submits that: i. The Order dated 28.03.2022 passed under Section 74 on the premise that there is element of fraud involved in claiming input tax credit by units located in other States being distributed by JSW Steel Ltd. GSTIN 27AAACJ4323N2ZF (in the State of Maharashtra) as ISD is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough statutory remedy is available to question the Order dated 28.03.2022 passed under Section 74 of the CGST/OGST Act in view of ratio of Judgment in the case of Raza Textiles Ltd. Vrs. ITO, (1973) 1 SCC 633 = AIR 1973 SC 1362 rendered by the Supreme Court of India. 6. Sri Ashok Kumar Parija, learned Advocate General assisted by Sri Sunil Mishra, learned Additional Standing Counsel for the CT&GST Organisation on advance notice not only opposed admission of the writ petition on availability of alternative remedy under Section 107 of the OGST Act, but also suggested not to accede to the prayer of the opposite parties in I.A. No.5190 of 2022 by restraining the opposite parties from taking further steps in connection with Order dated 28.03.2022 6.1. Mr. Parija, learned Advocate General placing reliance on manner of distribution of credit by Input Service Distributor (ISD) provided under Section 20 of the OGST Act submitted that the term "recipient of credit" has been defined to mean the supplier of goods or services or both having the same Permanent Account Number as that of the Input Service Distributor. In such circumstance clause (viii) of Section 24 which begins with non-obstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 8 of the OGST Rules. Learned Advocate General brought the notice of the Court the provisions contained in proviso to sub-rule (1) of Rule 8 which reads as follows: "Provided that every person being an Input Service Distributor shall make a separate application for registration as such Input Service Distributor." 6.6. JSW Steel Ltd. being the recipient of services in the State of Odisha is obligated to pay GST on reverse charge mechanism. 6.7. In such view of the matter, JSW Steel Ltd. of Odisha bearing GSTIN 21AAACJ4323N2ZR (in the State of Odisha) is not registered as ISD, thereby its input tax credit could not have been distributed by JSW Steel Ltd. bearing GSTIN 27AAACJ4323N2ZF (in the State of Maharashtra) which is ISD to other units located in other States including the State of Maharashtra. 7. We have patiently heard both the sides, and with able assistance of counsel perused the pleadings. It is apparent that JSW Steel Ltd., public limited company, has units located in different States including the State of Odisha with its Head Office at Mumbai. The Head Office at Mumbai is registered as ISD bearing GSTIN 27AAACJ4323N2ZF. It is also registered as normal taxpayer bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in Odisha, the same is actually paid on behalf of the JSW Steel Ltd.- ISD in Maharashtra, which we find is not supported by any documentary evidence nor has the statutory backing. 9. It is pertinent to notice that in view of definition of "Input Service Distributor" contained in Section 2(61), it is necessary that the ISD as an office is required to receive tax invoices towards inward supply. Since no such supply being shown to have been made by JSW Steel Ltd. of Odisha to JSW Steel Ltd. of Maharashtra, no prima facie case is made out by the Petitioner. Thus transactions in question prima facie amount to siphoning of tax amounts, therefore, apparently warrant invocation of proceeding under Section 74 of the OGST/CGST Act. 10. We decline to allow the prayer for restraining the Opposite Parties from effecting recoveries of the demand more so, in equitable jurisdiction under Article 226 of the Constitution of India. The Petitioner has not questioned vires of relevant and related provisions as discussed above. However, considering the other challenges as to jurisdiction (lack of jurisdiction or otherwise) of the State of Odisha as set out in the writ petition and pressed into serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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