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TMI Blog2025 (2) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... ant writ petition is disposed of in terms of the order dated 10th November, 2022 passed in the case of Usha Martin Limited and the impugned adjudication Order dated 08.01.2018 (Annexure-9) and the Appellate Order dated 13.12.2019 (Annexure-15) are, hereby, quashed and set aside.
Application disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... is chargeable and no penalty is imposable in the facts and circumstances of the case; (k) Ad-interim order in terms of all the prayers above; (l) Costs of and incidental to this application be paid by the respondents; (m) Such further or other order or orders be made and/or directions be given as would afford complete relief to your petitioner. 2. The brief facts of the case are that Petitioner, being a Public Sector Undertaking (PSU), is engaged in manufacture of various steel products and was registered under the provisions of the Jharkhand Value Added Tax Act, 2005 (for short 'JVAT Act') and with the implementation of GST regime, petitioner has also obtained registration under the provisions of 'Jharkhand Goods and Services Tax Act, 2017 (for short 'JGST Act') bearing Registration No. 20AAACS7062FAZJ. 3. Under the VAT regime, as on 30th June, 2017, Petitioner Company was having an un-availed input tax credit which was transitioned by it under GST regime in terms of Section 140 (1) of JGST Act. However, vide Show Cause Notice dated 21.12.2023, proceeding under Sections 73,74, 122, 132(1)(d) of JGST Act was initiated against the petitioner on following grounds, namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of 'Usha Martin Limited Vs. Additional Commissioner, Central GST & Excise, Jamshedpur & Ors.', reported in (2022) SCC OnLineJhar 1764. 8. It was submitted, inter alia, that exactly similar issue came up for consideration before this Court in the aforesaid case, wherein similar adjudication order denying the benefit of migration of CENVAT credit under GST regime was passed by adjudicating authority under the provisions of GST Act on the ground that availment of CENVAT credit under Central Excise Act, 1944 and Finance Act, 1994 was inadmissible. It has been submitted that this Hon'ble Court, after taking into consideration detailed provisions of GST Act, in substance, held that eligibility or ineligibility of CENVAT credit/Input Tax Credit under the erstwhile Act is to be adjudicated in terms of the provisions of erstwhile Act and migration of the credit under GST Act cannot be denied merely because certain credit of ITC, which has been migrated, was ineligible under the repealed Act. 9. Mr. Sa chin Kumar, learned AAG-II appearing for the State, admitted at Bar that the issue involved in the instant writ petition is covered by a coordinate Bench of this Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law which are pending adjudication before the learned CESTAT or the Commissioner (Appeals) for different periods and in some of which the petitioner has already got a stay by the learned CESTAT. Whether the Cenvat credit under the existing law were admissible to be availed and transitioned by the petitioner was not an issue lying within the jurisdiction of the C.G.S.T. authorities to be proceeded against and determined under the relevant provisions of section 73 of the C.G.S.T. Act which provides as under: "Under section 73 of the C.G.S.T. Act a proper officer may require a registered person to show cause in case it is found that he has not paid any tax or short paid or erroneously refunded or where input-tax credit has been wrongly availed or utilized for any reason, other than the reason of fraud or any willful misstatement or suppression of fact to evade tax (such contraventions are covered by section 74 of the C.G.S.T. Act) asking him to explain as to why he should not pay the amount specified in the notice along with interest and under section 50 and penalty thereupon". A perusal of the provisions of section 73 of the CGST Act makes it clear that such a proceeding can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the C.G.S.T. Act, it may lead to uncertainty not only in the minds of the ordinary citizens but also in the minds of the tax authorities. In some cases a jurisdictional proper officer under the C.G.S.T. Act may initiate proceedings under the provisions of the C.G.S.T. Act for such contravention. In other cases the competent jurisdictional officer may initiate proceedings under the existing law that is the C.E.A. and Finance Act for the same contravention in view of the repeal and saving provisions under Section 174 of the C.G.S.T. Act. Such a course cannot be countenanced in law. As such, we are of the considered view that the initiation of proceedings by respondent No. 1 under section 73 (1) of the C.G.S.T. Act, 2017 for alleged contravention of the C.E.A. and Finance Act, read with C.C.R. against the petitioner by filing TRAN 1 in terms of section 140 of the C.G.S.T. Act for transition of CENVET credit as being inadmissible under the existing law was beyond his jurisdiction. Consequently the order-in-original dated March 30, 2022 passed by respondent No. 1 being without jurisdiction cannot be sustained in the eye of law. The impugned adjudication proceedings and the order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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