TaxTMI 
TaxTMI 
2023 (10) TMI 578
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....ax credit of Rs. 36,94,981/- (Rupees Thirty Six Lakhs Ninety Four Thousand Nine Hundred and Eighty One only) (CGST of Rs. 2,36,412 + SGST of Rs. 2,36,412/- + IGST of Rs. 32,22,157/-) availed against the documents whose address was not included as additional place of Business due to technical glitch during the period from July, 2017 to March, 2020, for the reasons mentioned in para 16.1. 2. I demand Input Tax Credit of Rs. 35,525/- (Rupees Thirty Five Thousand Five Hundred and Twenty Five only) (CGST of Rs. 14,711/ + SGST of Rs. 14,711/- + IGST of Rs. 6,103/-) being excess Input Tax Credit availed in GSTR-3B during the period from April, 2018 to March, 2019 for the reasons stated in para 16.2 above. 3. I demand appropriate interest under section 50(3) of CGST Act, 2017/TNGST Act, 2017. 4. I impose a penalty of Rs. 35,525/- under Section 122(2)(a) read with Section 74(1) of the CGST Act, 2017, SGST Act, 2017 and as made applicable to IGST Act as per Section 20 of IGST Act, 2017 to the tune of Rs. 35,525/-. 5. I demand the Transitional credit of Rs. 12,47,610/- (Rupees Twelve Lakhs Forty Seven Thousand Six Hundred and Ten only) (CGST of Rs. 6,23,805....
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....h Sectio6n 74(1) of the CGST Act, 2017, SGST Act, 2017 and as made applicable to IGST Act as per Section 20 of IGST Act, 2017." 4. By the impugned Order-in-Appeal No.267/2022-JC (GSTA-II), on 04.08.2022, the first respondent has passed the following order. Operative portion of the order reads as under:- "6. I find that the credit availed in GSTR-3B as stated above Rs. 12,47,610/- being ITC not availed and needs to be demanded with interest and penalty under Section 122(2)(a) read with Section 73(1) of the CGST Act, 2017. The appellant has paid Rs. 12,43,610/- on 17th August 2021 leaving Rs. 4,000 unpaid which is yet to be recovered and the appellant has not paid applicable interest as on date. However, I uphold the impugned order demanding Rs. 12,47,610/- with applicable interest under Section 50(3) of the Act/TNGST Act, 2017 and appropriating Rs. 12,43,610/- paid on 17th August 2021. Since the demand is sustainable, I revise the penalty at the rate of 10 percent of the tax Rs. 12,47,610/- i.e., Rs. 1,24,761/- on the appellant under Section 122(2)(a) of the Act, read with Section 73(1) of the Act. 7.0 ....... 7.6. Thus, denial of ITC on account of defa....
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....for any reason other than the reason of fraud or any wilful misstatement or suppression of fact to evade tax. The appellant has paid Rs. 47,355/- with interest Rs. 22,924/- as stated in impugned order in para 16.4(a) and as per chalan No.CPIN:21033300108251 dated 12.03.2021, has informed the proper officer in writing of the payment on 17.03.2021 addressed to the Superintendent of GST & Central Excise, Circle-III, Audit II Commissionerate. In light of the above facts and circumstance of the case, I find that section 73(1) of the Act is applicable. Accordingly, the equal penalty imposed invoking Section 74(1) of the Act is not tenable. Therefore I set aside the equal penalty Rs. 47,355/- imposed vide the impugned order on the instant issue and I do not impose any penalty." 5. The petitioner is a Central Excise Assessee, who had a sum of Rs. 12,47,610/- as un-utilized Input Tax Credit as on 30.06.2017. This credit was sought to be transitioned by the petitioner under Section 140 of the Central Goods and Services Tax (CGST) Act, 2017 (hereinafter referred to as the CGST Act, 2017) and an attempt was made by the petitioner on 27.12.2017. However, the petitioner was unable to transiti....
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....nly on 17.08.2021 after the audit was conducted during January-2021 and after the mistake was pointed out to the petitioner. It is further submitted that a Show Cause Notice was also issued to the petitioner on 19.07.2021. It is only after the issuance of the Show Cause Notice, the petitioner has reversed the credit. Hence, it is submitted that the respondents are justified in imposing penalty on the petitioner under Section 50(3) of the CGST Act, 2017. 12. The learned Senior Standing Counsel submits that even otherwise penalty is to be imposed or interest is to be paid in terms of Section 73(9) of the CGST Act, 2017. 13. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Senior Standing Counsel for the respondents. 14. In this case, the issue is revenue neutral. The petitioner was entitled to transition/transmit the Input Tax Credit lying unutilized in his CENVAT account as on 30.06.2017 i.e., one day before the implementation of GST under Section 140 of the CGST Act, 2017. Thus, the Input Tax Credit that was lying unutilized was to be transitioned under the new regime in terms of Sections 139 and 140 of the CGST Act, 2017. ....