2023 (7) TMI 876

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....harkhand Goods and Service Tax Act, 2017 read with Rule 142 (1) of the Jharkhand Goods and Service Tax Act, 2017 read with Rule 142 (1) of the Jharkhand Goods and Services Tax Rules, 2017; (ii) For issuance of an appropriate writ(s), order(s), or direction(s) for quashing and setting aside the impugned Show Cause Notice dated 20.10.2022 bearing Ref. No. 1510 along with Summary of Show Cause Notice in Form GST-DRC-01 dated 20.10.2022 which are at Annexure-2 hereto, issued by the respondent no.2 for the period April 2019 to March 2020 in purported exercise of powers conferred under section 73 of the Jharkhand Goods and Services Tax Act, 2017 read with Rule 142 (1) (a) of the Jharkhand Goods and Services Tax Rules, 2017; 3. The brief fact of the case is that the petitioner is registered with the State GST Authorities under the Jharkhand Goods and Services Tax Act, 2017/Central Goods & Services Tax Act, 2017 vide GSTIN No. 20AAFCA2578R1ZD. The case of the petitioner is that two show cause notices were issued and both impugned show cause notices are for the same period for the self-same cause of action (except March, 2020) issued by two different authorities i.e., the Deputy....

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....nchi vide 1st Appellate Order dated 16-01-2021 accepted the contentions of the Petitioner and allowed the appeal filed by the Petitioner and determined the interest as NIL. The First Appellate Authority held that the Respondent No.2 should have started proceedings in accordance with provisions of Section 73 of the JGST Act before creating the interest demand following judgments of this Court in Godavari Commodities Ltd. Vs. UOI and Mahadev Construction Co. Vs. UOI. However, after more than 20 months of passing of 1st Appellate Order dated 16-01-2021 by the Joint Commissioner of State Tax (Appeal) Ranchi, the Respondent No.3, initiated fresh proceeding by way of the impugned Show Cause Notice bearing Ref. No.1131 under Section 73 (1) read with Section 75 (12) of the JGST Act, 2017 read with Rule 142 (1) of the JGST Rules, 2017 demanding interest of Rs.45,59,626.86/- for the same period i.e., April' 2019 to November' 2019, and for the same cause of action which was already adjudicated and Petitioner's appeal was allowed by the First Appellate Authority. In the impugned Show Cause Notice interest of Rs.6,63,025/- is also additionally demanded for the month of March, 2020, a period,....

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....is erroneous and is contrary to State GST Notification No.451 dated 29-07-2017 as amended by Notification No.31/2020-State Tax dated 25-06-2020 and corresponding Central GST Notification No.13/2017-Central Tax dated 28-06-2017 as amended by Notification No.31/2020-CT dated 03-04-2020, whereby the rate of interest for the month of February, 2020 to April, 2020 was reduced to Nil for the first 15 days of delay and 9% thereafter in place of 18%, for registered persons having annual turnover above Rs.5.00 Cr. It has been contended that since the annual turnover of the Petitioner is above Rs.5.00 Cr.; hence, they are entitled to the benefit of said notification. Considering the above extension of limitation for filing of GSTR-3B returns and reduction in the rate of interest, amount of Interest demand should have been Rs.12,791.44 only for the month of March,2020 as against demand of interest of Rs.6,63,026/- in the impugned Show Cause Notice dated 16-09-2022 for the month of March, 2020. Relying upon the aforesaid contentions, Mr. Kurmy submits that both the impugned show-cause notices deserve to be quashed. 7. Mr. Ashutosh Anand, learned AAG-III for the revenue submits that the r....

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....d thus; the same has attained finality and therefore the same issue or cause of action cannot be re-agitated in a fresh proceeding as the same is contrary to settled proposition of law. It further transpires that Section 107(16) of the JGST Act provides that every 1st appellate order passed thereunder shall be final unless subjected to Revision under Section 108, appeal to Tribunal under Section 113 or appeal to High Court under Section 117 or appeal to Supreme Court under Section 118 of the JGST Act. In the instant case, since the 1st appellate order is not subjected to Section 108, Section 113, Section 117, Section 118; thus, by virtue of sub-Section (16) of Section 107, it has attained finality. The Hon'ble Apex Court in the case of CCE Vs Prince Gutkha Ltd. reported in (2015) 15 SCC 775 has held that adjudicating authority dropping earlier demand accepting explanation of Assessee, issuance of second show cause notice on same cause of action, not permissible. Paragraph-3 of the said order is extracted herein below: "3. Insofar as the issue of clandestine removal of goods by Respondent 1 is concerned, we find that on the statement of Respondent 5 given earlier, the....

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....ate Tribunal as if it is an appeal made against the order under Section (11) of Section 107. The Respondents in the instant case being not aggrieved by the First Appellate Order dated 16-01-2021, did not challenge the same or availed remedies available under the law but accepted the same and allowed the same to attain finality; thus now they cannot be allowed to turn around and re-agitate a matter afresh which has already come to an end by due process of law. 10. It is also relevant to indicate that Section 107(11) envisages that the 1st Appellate Authority cannot remand the matter back. In such circumstances, to bypass the embargo of law, restarting fresh proceeding by lower authorities amounts to doing something indirectly which cannot be done directly. As per Section 107(11) of the JGST Act, no power is vested on the First Appellate Authority to remand the matter back to the assessing authority that passed the order. Therefore, since there is no power vested in the first appellate authority to remand the matter back to the Respondent No.2 or Respondent No.3 to initiate a denovo proceeding; the first appellate authority accordingly and rightly so, did not remand the matter ....