9911796707
TMI Blog2024 (3) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the circular. Keeping in mind the ratio laid down by the Hon ble Bombay High Court in the case of Oasis Realty as well as the circular dated 6th July 2022 issued by the GST Policy Wing, Central Board of Indirect Taxes and Customs, Ministry of Finance, Government of India, it has been clarified that the payment of pre-deposit can be made by utilizing the Electronic Credit Ledger (ECL). The petitioner may utilize the amount available in the Electronic Credit Ledger to pay the 10% of Tax in dispute as prescribed under sub-section (6) of Section 107 of the CGST Act. Accordingly, the impugned order-inappeal No.CR/ADC/APL/147/2022 dated 25th July 2022 passed by the respondent No.2 is hereby quashed and set aside. The appeal is restored to file on the undertaking of the petitioner that it shall debit the Electronic Credit Ledger within two weeks of this order getting uploaded towards this 10% payable under Section 107(6) (b), if not already debited, is accepted. Petition disposed off. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA MR.AVINASH PODDAR(9761) FOR THE PETITIONER(S) NO. 1 MR UTKARSH R SHARMA(6157) FOR THE RESPONDENT(S) NO. 1,2 ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3713 as an unregistered premises and thereby, issued order for seizure with respect to the goods kept in those premises. [2.5] The statements of the petitioner came to be recorded on 30th January 2019 and 26th April 2019. On 29th April 2019, the learned Principal Commissioner GST and Central Excise, Surat has issued the order under Section 67(7) of the CGST Act and extended operation of the order for seizure and prohibition order by further six months. [2.6] The show cause notice under Section 74 of the CGST Act dated 25th October 2019 came to be issued. In the said show cause notice,, Mr. Hemanshu Kanaiyalal Sopariwala, partner of the petitioner, was asked to show cause why penalty should not be imposed upon him under Section 122(3) of the CGST Act for contravention of provisions of the Act. [2.7] In the said show cause notice dated 25th October 2019, the learned Assistant Commissioner, GST and Central Excise, Division- I, Surat has directed the petitioner to show cause why: (i) Goods confiscated valued at Rs.60,31,867/- should not be confiscated under the provisions of Section 130(1) of the CGST Act; (ii) Penalty under Section 122 of the CGST Act should not be imposed upon the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been covered by the officers of the SGST. (iii) Further, prayed to revalue the seized goods as the valuation shown in the show cause notice is baseless and in support of its claim, he has already submitted its evidences and working through his letter dated 6th July 2020. [2.14] The learned Assistant Commissioner has issued the order in original dated 29th April 2021 as under: (i) Confiscation of the goods valued at Rs.61,62,532/- seized at the premise of the petitioner under Section 130(1) of the CGST Act; (ii) Imposed penalty equivalent to tax amount i.e. Rs.11,09,256/- under Section 122 of the CGST Act upon the petitioner; (iii) Confirmed the demand of GST amounting to Rs.9,06,912/- payable on unaccounted goods valued at Rs.50,38,400/- under Section 74(1) of the CGST Act read with Section 35(6) of the CGST Act; (iv) Imposed interest at an appropriate rate on the demand confirmed on (iii) above; (v) Imposed penalty of Rs.9,06,912/- upon the petitioner under Section 122(1) of the CGST Act in respect to demand at (iii) above; (vi) Imposed penalty of Rs.25,000/- upon Mr. Hemanshu Kanaiyalal Sopariwala, the partner of the petitioner under Section 122(3) of the CGST Act for his invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are stated hereinabove. [10] Having heard the learned advocates appearing for the respective parties and having gone through the material produced on record, the only question that falls for the consideration of this Court is whether the appellant, to comply with the requirement of sub-section (6) of Section 107 of the CGST Act of paying a sum equal to 10% of the amount of tax in dispute arising out of the impugned order, can pay the amount utilizing the credit available in the Electronic Credit Ledger? [11] In our considered opinion, the aforesaid question is no more res integra. The Hon ble Bombay High Court in the case of Oasis Realty (supra), having considered the relevant provisions, held as under: 9. We are not in agreement with the submission made on behalf of the State. This is because clause (b) of Sub-section (6) of Section 107 provides a precondition, unless the appellant has paid (not deposited) a sum equal to 10% of remaining amount of Tax in dispute. It says 10% of Tax has to be paid as a precondition. That Tax can be Integrated Tax or Central Tax or the State Tax as in the case at hand, or Union Territory Tax. The amount of ITC available in the Electronic Credit Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the amounts available in the Electronic Credit Ledger and the Electronic Cash Ledger for payment of tax and other liabilities. The CBIT C, in its circular F. No.CBIC-20001/2/2022-GST dated 6th July 2022 has clarified as under : - Utilisation of the amounts available in the electronic credit ledger and the electronic cash ledger for payment of tax and other liabilities. xxxxxx 6. Whether the amount available in the electronic credit ledger can be used for making payment of any tax under the GST Laws? 1. In terms of sub-section (4) of section 49 of CGST Act, the amount available in the electronic credit ledger may be used for making any payment towards output tax under the CGST Act or the Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as IGST Act ), subject to the provisions relating to the order of utilisation of input tax credit as laid down in section 49B of the CGST Act read with rule 88A of the CGST Rules. 2. Sub-rule (2) of rule 86 of the CGST Rules provides for debiting of the electronic credit ledger to the extent of discharge of any liability in accordance with the provisions of section 49 or section 49A or section 49B of the CGST Act. 3. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
