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TMI Blog2024 (5) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of a tax invoice or debit note issued by the supplier under the CGST Act or such other tax paying documents as may be prescribed. In this case, the taxpayer was not able to produce the impugned tax invoices to the audit officers for verification, during audit. Even along with their reply to the show cause notice, they enclosed only highly illegible copies of the invoices, with which their genuineness could not be ascertained - it is clear that the taxpayer was not in possession of the five invoices pointed out by the audit officers. The taxpayer's argument in this regard in their written reply and during the personal hearing was not relevant and does not hold good. Three invoices in respect of which the taxpayer had availed ITC, wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Standing Counsel ORDER The petitioner has challenged the impugned Order-in-Original No. 02/XO0502/2021 dated 13.09.2021 passed by the third respondent. By the impugned order, the third respondent has concluded as follows:- 12. From the above discussion, it can be concluded beyond doubt that: a) The taxpayer is liable to pay GST on ocean freight incurred by them during Jul-17 to Mar-18, under RCM, amounting Rs. 1,50,402/-, with appropriate interest. b) ITC availed by the taxpayer during Jul-17 to Mar-18, in respect of five inward supplies, in respect of which they were not in possession of the tax invoices, amounting Rs. 4,12,438/- is not eligible and is liable to be recovered with appropriate interest c) ITC availed by the taxpayer durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undred and Eighty-Six Only) is imposed under Section 73(9) of the CGST Act, read with Section 122(2)(a) ibid and Section 20 of the IGST Act and corresponding sections of the TNGST Act. 3. It is informed by the learned counsel for the petitioner which is also confirmed by the learned Senior Standing Counsel for the second and third respondents that as far as the demand in paragraph 13(a) (b) of the impugned order is concerned, the issue is squarely covered in favour of the petitioner in terms of the decision of the Hon'ble Supreme Court in Union of India and another Vs. M/s Mohit Minerals Pvt. Ltd. , 2022 (61) GSTL 257 (SC). Paragraph No.6 of the counter affidavit filed by the respondents also admits the position which reads as under:- 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 read with Section 73(1) of the CGST Act, 2017 and Section 20 of the IGST Act, 2017 is concerned, the demand has to go. 5. As far as the balance demand for Rs. 4,25,456/- together with interest and penalty that has been imposed on the petitioner is concerned, it is noticed that the petitioner was unable to produce clear copy of the invoices based on which the petitioner had availed input tax credit in its Form GSTR-3B. It is submitted by the learned counsel for the petitioner that the information is also reflected in Form GSTR-2A which is an auto-populated Return which enables an assessee to utilize the input tax credit availed in Form GSTR-3B. It is submitted that the issue may be remitted back and one more opportunity may be granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice, they enclosed only highly illegible copies of the invoices, with which their genuineness could not be ascertained. During the personal hearing also, they produced such illegible copies only. Though they asserted during personal hearing that they would produce the invoices in a day or two, they did not furnish any invoice. From the same, it is clear that the taxpayer was not in possession of the five invoices pointed out by the audit officers. The taxpayer's argument in this regard in their written reply and during the personal hearing was not relevant and does not hold good. 11.8 The third issue in the show cause notice is that three invoices in respect of which the taxpayer had availed ITC, were not reflected in GSTR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that GST has not been paid on the same. Therefore, as per Section 16(2) of the CGST Act, the taxpayer is not eligible for ITC in respect of the concerned three invoices. 10. In my view, the submission of the learned counsel for the petitioner that credit was auto-populated in GSTR-2A also, is incorrect in view of the above reason. Considering the same, I am inclined to dismiss this Writ Petition insofar as the demand in paragraph 13(c), (d) (e) of the impugned order is concerned. Insofar as the demand in paragraph 13(a) (b) for a sum of Rs. 1,50,402/- towards IGST and interest thereon under Section 50(1) of the CGST Act, 2017 read with Section 73(1) of the CGST Act, 2017 and Section 20 of the IGST Act, 2017 is concerned, the issue is squar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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