9911796707
TMI Blog2023 (7) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 107, it has attained finality. The Hon ble Apex Court in the case of CCE Vs Prince Gutkha Ltd. [ 2015 (7) TMI 964 - SUPREME COURT] has held that adjudicating authority dropping earlier demand accepting explanation of Assessee, issuance of second show cause notice on same cause of action, not permissible. In the case of COMMR. OF C. EX., VADODARA VERSUS GUJARAT STATE FERTILIZERS CHEM. LTD. [ 2008 (7) TMI 61 - SUPREME COURT ] it is held by the Hon ble Apex Court that order of the Tribunal has attained finality due to non-filing of appeal by the department. Hence, appeal on the same issue is not maintainable which has already attained finality. The Respondents in the instant case being not aggrieved by the First Appellate Order dated 16-01-2021, did not challenge the same or availed remedies available under the law but accepted the same and allowed the same to attain finality; thus now they cannot be allowed to turn around and re-agitate a matter afresh which has already come to an end by due process of law. Having regard to the discussions made, the Revenue cannot re-agitate and issue fresh show cause notices again for the same cause of action covering same period against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation allowed. - HON BLE MR. JUSTICE RONGON MUKHOPADHYAY And HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mr. K.Kurmy, Adv. Mr. N.K.Pasari, Adv Ms. Sidhi Jalan, Adv. For the Respondents : Mr. Ashutosh Anand, AAG-III JUDGMENT Heard learned counsel for the parties. 2. The instant writ application has been preferred for following reliefs:- (i) For issuance of an appropriate writ(s), order(s), or direction(s) for quashing and setting aside the impugned Show Cause Notice dated 16.09.2022 bearing Ref. No. 1131 dated 16.09.2022 along with Summary of Show Cause Notice in Form GST-DRC-01 dated 16.09.2022 which are at Annexure-1 hereto, issued by the respondent No.3 for the period April 2019 to March 2020 in purported exercise of powers conferred under section 73, Section 75 (120, Section 50 of the Jharkhand Goods and Service Tax Act, 2017 read with Rule 142 (1) of the Jharkhand Goods and Service Tax Act, 2017 read with Rule 142 (1) of the Jharkhand Goods and Services Tax Rules, 2017; (ii) For issuance of an appropriate writ(s), order(s), or direction(s) for quashing and setting aside the impugned Show Cause Notice dated 20.10.2022 bearing Ref. No. 1510 along with Summary of Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (IGST Rs.3,17,399,96 + CGST Rs.28,99,045.40 + SGST Rs.29,28,788.58) for the period April, 2019 to November, 2019 for purported delay in filing of GSTR-3B returns under Section 39(1) of the JGST Act read with Rule 61(5) of the JGST Rules, 2017 for the period April, 2019 to November, 2019. The Respondent No.2 before passing the said adjudication Order dated 14-03-2020 did not issue any show cause notice as mandated under Section 73 of the JGST Act, 2017, and on this ground the Petitioner-Company challenged the order dated 14-03-2020/DRC-07 dated 16-03-2020 before the Joint Commissioner of State Tax (Appeal), Ranchi U/s 107 of the JGST Act. The Joint Commissioner of State Tax (Appeal) Ranchi vide 1st Appellate Order dated 16-01-2021 accepted the contentions of the Petitioner and allowed the appeal filed by the Petitioner and determined the interest as NIL. The First Appellate Authority held that the Respondent No.2 should have started proceedings in accordance with provisions of Section 73 of the JGST Act before creating the interest demand following judgments of this Court in Godavari Commodities Ltd. Vs. UOI and Mahadev Construction Co. Vs. UOI. However, after more than 20 months o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel further submits that in the case of UOI Vs. Vicco Laboratories reported in (2007) 218 ELT 647 (SC), it is held that reopening concluded assessment amounts to abuse of the process of law. It is held that when there is abuse of the process of law, writ under Article 226 would be maintainable. The Hon ble Apex Court in the case of Duncans Industries Ltd Vs. CCE reported in (2006) 201 E.L.T 517(S.C), has held that for the same period two assessments are not permissible in law. 6. With respect of demand for March, 2020, learned counsel contended that the demand of interest of Rs.6,63,025/- in the impugned first Show Cause Notice dated 16-09-2022 (Annexure-1) is erroneous and is contrary to State GST Notification No.451 dated 29-07-2017 as amended by Notification No.31/2020-State Tax dated 25-06-2020 and corresponding Central GST Notification No.13/2017-Central Tax dated 28-06-2017 as amended by Notification No.31/2020-CT dated 03-04-2020, whereby the rate of interest for the month of February, 2020 to April, 2020 was reduced to Nil for the first 15 days of delay and 9% thereafter in place of 18%, for registered persons having annual turnover above Rs.5.00 Cr. It has been cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 73 of the JGST Act is going on. The simultaneous proceeding under section 73 before two (2) authorities for the same period was an administrative process, which occurred due to reason above stated. He lastly submits that the instant writ application is devoid of any merit and deserves to be dismissed. 8. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein; it is evident that the first Appellate Order dated 16-01-2021 passed by the Joint Commissioner of State Tax (Appeal), Ranchi was accepted by the department and no further appeal was filed and thus; the same has attained finality and therefore the same issue or cause of action cannot be re-agitated in a fresh proceeding as the same is contrary to settled proposition of law. It further transpires that Section 107(16) of the JGST Act provides that every 1st appellate order passed thereunder shall be final unless subjected to Revision under Section 108, appeal to Tribunal under Section 113 or appeal to High Court under Section 117 or appeal to Supreme Court under Section 118 of the JGST Act. In the instant case, since the 1st appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Goods and Services Tax Act for the purpose of satisfying himself as to the legality or propriety of the said order may, by order, direct any officer subordinate to him to apply to the Appellate Tribunal within six months from the date on which the said order has been passed, for determination of such points arising out of said order as may be specified by the Commissioner in his order. Further, Section 112(4) of the JGST Act provides that where in pursuance of an order under Section 112(3) the authorized officer makes an application to the Appellate Tribunal, such application shall be dealt with by the Appellate Tribunal as if it is an appeal made against the order under Section (11) of Section 107. The Respondents in the instant case being not aggrieved by the First Appellate Order dated 16-01-2021, did not challenge the same or availed remedies available under the law but accepted the same and allowed the same to attain finality; thus now they cannot be allowed to turn around and re-agitate a matter afresh which has already come to an end by due process of law. 10. It is also relevant to indicate that Section 107(11) envisages that the 1st Appellate Authority cannot remand the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the month of February, 2020 to April, 2020 was reduced to Nil for first 15 days of delay and 9% thereafter in place of 18%, for registered persons having annual turnover above Rs.5.00 Cr. Since the annual turnover of the Petitioner is above Rs.5.00 Cr.; hence, they are entitled to the benefit of said notification. Considering the above extension of limitation for filing of GSTR-3B returns and reduction in the rate of interest, amount of Interest demand should have been Rs.12,791.44/- only for the month of March, 2020 as against demand of interest of Rs.6,63,026/- in the impugned Show Cause Notice dated 16-09-2022 for the month of March,2020. Thus; the petitioner is liable to pay interest of Rs.12,791.44/- only for the month of March, 2020 as against demand of interest of Rs.6,63,026/-.Thus, the petitioner is directed to pay the same amount within a period of two weeks, if not paid, from the date of receipt/production of copy of this Order. 12. In view of the aforesaid findings and the judicial pronouncements, both the impugned show-cause notices, are hereby, quashed and set-aside. As a result, the instant writ application is allowed in the manner indicated herein above. I.A, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
