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TMI Blog2024 (10) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the proceedings under Sections 73 74 of the UPGST Act will come into play and not proceedings under Section 130 read with Rule 122 of the Act.'. The law is clear on the subject that the proceedings under section 130 of the GST Act cannot be put to service if excess stock is found at the time of survey. The impugned order dated 18.07.2019 passed by the respondent no. 5 under section 130 read with section 122 of the UPGST Act as well as the impugned order dated 19.08.2023 passed by the first appellate authority, the respondent no. 4 cannot be sustained in the eyes of law. The same are hereby quashed - Petition allowed. - Hon'ble Piyush Agrawal, J. For the Petitioner : Harsh Vardhan Gupta For the Respondent : A.S.G.I.,C.S.C. ORDER HON'BLE PIYUSH AGRAWAL, J. 1. Rejoinder affidavit filed on behalf of respondent nos. 3,4 and 5 in the Court today is taken on record. 2. Heard Shri Harsh Vardhan Gupta, learned counsel for the petitioner, learned Standing Counsel for the State - respondents and Sri Anant Kumar Tiwari, learned counsel for the Union of India. 3. The instant writ petition has been filed challenging the impugned order dated 18.07.2019 passed by the respondent n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- 10. The issue in hand is covered by the judgement of this Court in Metenere Limited (supra), in which following observations have been made:- 22. From the perusal of the scheme of the Act and the statutory provisions what emerges is that Section 9 of the CGST is the charging section which provides for levy of tax on supplies of goods or services. Section 12 of the CGST Act provides for time on which the tax are to be paid and elaborates the time of supply of goods and Section 12 (2) clearly provides that the time of supply of goods is the date of issue of invoices or the date of receiving of the payment in respect to such supplies. 23. Section 35 (1) clearly provides that all the registered person are required to keep and maintain at the principal place of business a true and correct account of things specified in Clause (a) to (f). The Second proviso to Section 35 (1) ,Rule 56 and Rule 57 make it further necessary to keep the said documents as specified in Clause (a) to (f) in the electronic form. 24. Section 35 (6) of the said Act provides that in the event the person fails to keep their accounts for the goods or the services in accordance with the provisions of Sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds relied upon in the said statement, except the ground of fraud, or any wilful-mis-statement or suppression of facts to evade tax, for periods other than those covered under sub-section (1) are the same as are mentioned in the earlier notice. (5) The person chargeable with tax may, before service of notice under sub-section (1), pay the amount of tax along with interest payable under section 50 and a penalty equivalent to fifteen per cent. of such tax on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under sub-section (1) pays the said tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in the case M/s Metenere Limited (supra) wherein on the basis of a similar search conducted, the demand was quantified. This Court after analysing the provisions of the Act and the Rules applicable held that for the infractions as contained in Section 122 of the GST Act and specified in Column ''A' of paragraph 35 of the said judgment M/s Metenere Limited (Supra) held that penalty has to be Rs. 10,000/- or the amount of tax evaded whichever is higher, whereas for the infractions specified in Column ''B' of paragraph 35, the penalty that can be imposed is Rs. 10,000/- only. This Court also held that the demand for tax can be quantified and raised only in the manner prescribed in Section 73 or Section 74 of the Act, as the case may be. 12. In the light of what has been decided by this Court in the case of M/s Metenere Limited (Supra), it is clear that the entire exercise resorted to under Section 130 of the GST Act for assessment/ determination of the tax and the penalty is neither stipulated under the Act, nor can be done in the manner in which it has been done, more so, in view of the fact that the department itself had undertaken the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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