TaxTMI 
TaxTMI 
2024 (2) TMI 1354
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....g the original advance ruling have changed. 4. In terms of Section 104 of the Act, where the Authority finds that advance ruling pronounced by it under sub-section (4) of Section 98 or under sub-section (1) of Section 101 has been obtained by the applicant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the applicant as if such ruling had never been made. 5. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a reference to the same provisions under the Tamil Nadu Goods and Service Tax Act. 1. The applicant submitted a copy of Electronic Cash Ledger evidencing payment of application fees of Rs. 5,000/ each under sub-rule (1) of Rule 104 of CGST Rules 2017 and SGST Rules 2017. 2.1 The applicant, a GST Registr....
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....y in this regard and accordingly the provisions of Sections 74, 129 and 130 of the CGST Act, 2017 does not apply to the instant case. Therefore, ITC of IGST paid as part of differential Customs duty should be available to the taxpayer, in the instant case. 2.3 The authorities of the Centre and State were addressed to report if there are any pending proceedings against the applicant on the issues raised by the applicant in the ARA application and for comments on the issues raised. 3. The jurisdictional Centre authority has not furnished any reply in this regard, and it is construed that there are no proceedings pending on the issue raised by the applicant. 4.1 The concerned State authority under whose administrative jurisdiction the taxpayer falls, have vide letter dated 27.02.2023 stated that on perusal of the Audit Report of the Deputy Commissioner of Customs, it is seen that on the misclassification being pointing out, the applicant had agreed to the lapse and paid the differential tax payable along with applicable interest and penalty on 28.07.2022. The concerned authority has reasoned out that the order passed by the Deputy Commissioner of Customs (Audit), New Delhi, b....
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....said rule provides for documents that are considered to be valid for the purpose of availing ITC. As per sub-rule (d) to Rule 36 "a bill of entry or any similar document prescribed under the Customs Act, 1962 or rules made thereunder for the assessment of integrated tax on imports;.............." is a prescribed document for availing ITC. • Section 17 of the CGST Act, 2017 lists down certain exceptions wherein benefit of ITC is denied. One such restriction under sub-section (5) to Section 17 is applicable in eases where the tax has been paid in accordance with the provisions of Sections 74, 129 and 130 of the CGST Act, 2017. • Further Rule 36(3) of the CGST Rules, provides for restriction on availment of credit in respect of tax amount discharged pursuant to demand order confirmed on account of any fraud, willful misstatement or suppression of facts. • Section 20 of the IGST Act, 2017 borrows the provisions from the CGST law in so far as it relates to "(iv) input tax credit", amongst other issues, whereby it becomes clear that the said provisions apply mutatis mutandis in relation to Integrated tax, as they apply in relation to central tax, as....
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....f duty and not a document used for assessment of IGST on imports. • The Customs authorities on submission of challan and workings have appropriated the payment towards the customs dues which itself substantiates that those documents are accepted under the customs law by the authorities. lienee, the same should be acceptable under GST also. • On the basis of various judicial pronouncements, it appears that the documents evidencing payment as produced by the Company to prove payment of differential duty should be given due consideration as a valid duty paying document for availment of ITC. • Since the GST law is pari materia to the erstwhile regime to a large extent, reference can also be drawn from similar provisions in the erstwhile regime. Rule 9(1)(b) the CENVAT Credit Rules, 2004 provided list of documents basis which CENVAT credit could be availed. One of the said documents was a supplementary invoice, which basically included challan or any other similar document evidencing payment of additional amount of additional duty leviable under Section 3 of the Customs Tariff Act, 1975. • As per Section 17(5) of the CGST Act, 2017, IT....
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.... not arise at all. Consequently, it follows that there can be no suppression as per the second part of the definition of 'suppression'. • The ITC disallowance is only when any payment is made in accordance with Section 74. In the present case, no proceedings have been initiated u/s 74. Rather the payment of tax along with interest and penalty was made suo motu pursuant to an enquiry under customs. Hence, there is no such disallowance. • Further, as per Rule 36(3) of the CGST Rules, 2017, no ITC is allowed to the taxpayer in case the tax has been paid in pursuance of any order where demand has been confirmed on account of fraud, willful misstatement or suppression of facts. The restriction is only if payment is made pursuant to an order conforming the demand on account of any fraud, willful misstatement or suppression of facts. • The Company submits that it has not deliberately omitted so as to escape from payment of duty. In fact, proper intimation has been made by the Company to the Customs authorities by way of letter dated 17 June 2019. Moreover, no allegation of suppression has been made by the Department so far. Therefore, the Company is ....
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....e imports undertaken during FY 2018-19, FY 2019-20 and FY 2020-21, the Company has discharged applicable Customs duty and accordingly availed credit of the IGST paid as part of it. Upon on site post clearance audit by the Customs authorities, certain mis-classification of the goods imported during the relevant period was observed. After discussions with the Customs authorities, the applicant made payment of differential Customs duty as applicable during the relevant period. The said payment has been made by the Company during the year 2022 vide demand drafts. Also, requisite certificate regarding the said payment has been issued by the concerned bank in this regard. The Company has also separately filed a letter with the Customs authorities by specifically indicating the amount of IGST (forming part of the differential Customs duty) that has been discharged vide the said demand drafts. The applicant had stated that the payment of differential IGST can very well be linked to individual imports and BoEs, and that so far, no notice has been issued on the Company regarding this differential duty payment. 8.1 Out of the three queries raised by the applicant, initially the query refer....
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....cial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier. " 8.2.2 Section 17(5) of the CGST/TNGST Act, 2017, reads as,- "(5) Notwithstanding anything contained in sub-section (1) of section 16 and sub-section (1) of section 18, input tax credit shall not be available in respect of the following, namely:- .......... (i) any tax paid in accordance with the provisions of sections 74, 129 and 130." 8.2.3 In addition, Rule 36 of the Central Goods and Services Tax Rules, 2017 ('CGST Rules, 2017) provides for other documentary requirements and conditions for claiming ITC. The said rule provides for documents that are considered to be valid for the purpose of availing ITC. The same has been reproduced hereunder:- "(1) The input tax credit shall be availed by a registered person, including the Input Service Distributor, on the basis of any of the following documents, namely, - (a) an invoice issued by the supplier of goods or services or both in accordance with the provisions of section 31; (b) an invoice issued in accordance with the provisions of clause (f) of sub-se....
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....raud or any willful- misstatement or suppression of facts. (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input, tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty equivalent to the tax specified in the notice." 8.4.3 It may be noted here that though serving of a notice on the person chargeable with tax not paid or short paid is a requirement under the said provisions, a window has been provided to the taxpayers whereby they could avoid service of notice to them, if they come forward to pay the tax along with appropriate interest and a penalty equivalent to fifteen percent of such tax, as laid down under sub-sections (5) and (6) to Section 74 of the CGST....
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....s leviable under section 5 of the Integrated Goods and Services Tax Act, 2017 on a like article on its supply in India, on the value of the imported article as determined under sub-section (8) ^9[or sub-section (8A), as the case may be]. (8) For the purposes of calculating the integrated tax under sub-section (7) on any imported article where such tax is leviable at any percentage of its value, the value of the imported article shall, notwithstanding anything contained in section Id of the Customs Act, 1962 (52 of 1962), be the aggregate of- (a) the value of the imported article determined under sub-section (1) of section Id of the Customs Act, 1962 (52 of 1962) or the tariff value of such article fixed under sub-section (2) of that section, as the case may be; and (b) any duty of customs chargeable on that article under Section 12 of the Customs Act, 1962 (52 of 1962), and any sum chargeable on that article under any law for the time being in force as an addition to, and in the same manner as, a duty of customs, but does not include the tax referred to in sub-section (7) or the cess referred to in sub-section (9). 8.7 Accordingly, it becomes clear tha....