TaxTMI 
TaxTMI 
2022 (3) TMI 442
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....39; 2017, May' 2017 and June' 2017. After the implementation of GST regime, the petitioner claimed the said unavailed CENVAT credit through TRAN-1, and the same has been carry forwarded to a new regime as Input Tax Credit. 4. While so, during the month of May' 2019, the second respondent has informed the petitioner that the return in ER-1, for the first quarter of 2017, that is, for the months of April' 2017, May' 2017 and June' 2017, has not been filed by the petitioner, and therefore, Tvl. Kumaran Filaments (P) Ltd. v. Commissioner of Central GST and Central Excise insisted the petitioner to immediately reverse the CENVAT credit of Rs. 50,21,080/-. Subsequently, or immediately, the petitioner submitted the said ER-1 for the months of April, May and June, 2017, and uploaded through online on ACES portal, for which acknowledgement with a caption 'successful upload' message was also received by the petitioner. However, the said uploaded returns were rejected by portal due to the technical glitches and even after repeated attempts with the helpdesk, the same could not be filed, therefore, the petitioner is eligible to carry forward the closing balance....
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....n 122 (2)(a) of the CGST Act, for wrong availment of Input Tax Credit for any reason other than fraud or any wilful mis-statement, etc., Tvl. Kumaran Filaments (P) Ltd. v. Commissioner of Central GST and Central Excise 9. Felt aggrieved over the said order, the petitioner has moved this writ petition with the aforesaid prayer. 10. At the first instance, when this Court posed a question to the learned counsel for the petitioner, that as against the impugned order, why appeal has not been filed, and why the petitioner has chosen to approach this Court by invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the reply was that insofar as the dis-allowance of the credit and demand of the tax is concerned, the petitioner has not agitated the issue, because the entire tax demand has been appropriated from the credit of the petitioner from the electronic ledger, however, he would submit that, when the entire demand of tax has been appropriated from the credit of the petitioner, the question of demanding any interest on the said payment of tax, and also imposing a penalty, as if that, the petitioner has wrongly availed the ITC, does not ar....
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....thus Tvl. Kumaran Filaments (P) Ltd. v. Commissioner of Central GST and Central Excise be said to be prejudiced in any way. 24. Useful reference may also be made to a decision of a Division Bench of this Court in Commissioner of Central Excise, Puducherry-I Vs. W.P.Nos.28437 of 2020 etc. batch CESTAT, Chennai 2017 (346 E.L.T. 80). The Bench was answering a substantial question of law on the issue of whether interest may be demanded for differential duty not paid in time, since the assessee had sufficient credit in its current account during the relevant period. One of the reasons on which the revenues' appeal was dismissed and the assessee's contention that no demand for interest would arise in a case where sufficient credit is available to the assessee, is set out in para 6 of the short decision. The Bench notes that there was sufficient credit available with the Department as on 30.06.2006 and the principal demand raised arose only from the adjustment of such credit. This adjustment could well have been automatic and the Bench thus says that no interest would lie on such adjustment which could have been made at any time, since the Tvl. Kumaran Filaments (P) Ltd. v. Commission....
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....ndent counsel does not want to traverse the said issue. 18. However, insofar as the demand of interest is concerned, the learned Standing Counsel would contend that, such a demand is possible and infact inevitable, in view of Section 50(3) of the CGST Act, 2017, r/w 143 of CGST Rules, 2017 as well as Section 174 of the CGST Act, 2017. 19.By further elaborating her submission, learned Standing Counsel for the respondents would also submit that, since the petitioner has intended to wrongly avail or utilise the ITC, and in this regard, the demandable tax, which was due long back since has not been paid, and it had been paid only by way of appropriation from the credit only through the impugned order, till such time since the tax has not been paid to the credit of the petitioner in the respondents' account, certainly, that tax due Tvl. Kumaran Filaments (P) Ltd. v. Commissioner of Central GST and Central Excise shall carry the interest. 20. The learned Standing counsel would also submit that, insofar as the penalty is concerned, under Section 122(2), one of the circumstances mentioned therein is that, if any registered person, who supplies any goods or services or both, on which....
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.... portions of the impugned order is concerned, since the petitioner has given up his challenge, we need not Tvl. Kumaran Filaments (P) Ltd. v. Commissioner of Central GST and Central Excise traverse on these issues. However, insofar as the third and fourth clause of the interim order, where, interest was demanded or penalty was imposed are concerned, since there has been a case and counter case projected by the learned counsel for the parties, those issues alone are dealt with. 25. Insofar as the due of interest is concerned, the factual matrix is that, the entire amount of Rs. 50,21,080/- was very much available in the credit of the petitioner for the whole period, therefore, if at all, the same is disallowed, and accordingly, it is appropriated through the impugned order, even before appropriation, since the amount has been in the credit of the petitioner, that is, in the electronic ledger from which, the amount now has been appropriated, it can be safely stated that the said amount, since have been in the credit of the petitioner for the entire period, it may not require any interest to be paid. 26. In order to fortify the said view, this Court wants to press Tvl. Kumaran Filam....