TaxTMI 
TaxTMI 
2024 (3) TMI 854
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....e show cause notice dated 16.10.2015 under the category of 'Construction of Complex Service' for the construction of 'Residential complex' by the Assessee. Thereafter, statements of demands were issued for the period 2015-16 to 2017-18 on 13.03.2018. The matter was adjudicated by the Commissioner and Service tax, Demand of Rs. 240,55,21,470/- was dropped in respect of amounts received from the project members relating to "Project yet to commence" and "Ongoing Projects Receipts" as the same were raised/calculated on the basis of cumulative figures accounted/reflected in the Balance Sheet in respect of such construction deposits. Demand was confirmed amounting to Rs. 84,95,49,572/- on the net amount of Construction Deposit (Income) collected/received from the project members in respect of which the construction had commenced. Aggrieved by the said order, M/s Army Welfare Housing Organization are in process of filing the appeals which is registered as Diary No. 52111 OF 2023 and Diary No. 52128 OF 2023. 2. A defect notice was issued to M/s Army Welfare Housing Organisation. In the defect notice, it has been mentioned that M/s Army Welfare Housing Organisation has not submitted the ....
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....sed the order impugned in the petition, has filed an affidavit dated 29th September 2022. The said Mr. Lal has expressed, in effect, his helplessness since according to him the law as well as the circulars issued does not permit pre-deposit in the manner made by petitioner and even in two cases of petitioner, where he had accepted payment of pre-deposit as made by petitioner, was due to oversight. According to Mr. Lal the proceedings under Central Excise Act, 1944 or Finance Act, 1994 and CGST are separate proceedings and, therefore, payment method used under the old laws, i.e., Central Excise Act, 1944 and Finance Act, 1994 cannot be used for payment under CGST Act. Mr. Lal states that the tools available under the CGST laws may be utilised for making payment under the CGST laws. 5. Without going into the details, Ms. Masurkar informed the Court that if the Court directs respondent no.3 to consider the payment made by petitioner towards the pre-deposit as proper payment, respondent no.3 will accept that as payment made and hear petitioner on merits and pass fresh orders. We have to also note that in the impugned order respondent no.3 has admitted that payment has been mad....
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.... without applying his mind. We accept Ms. Masurkar's explanation having considered the letter dated 10th February 2022 that is placed on record. 8. Therefore, it does appear that the confusion seems to be due to there being no proper legal provision to accept payment of pre-deposit under Section 35F of the Central Excise Act, 1944 through DRC-03. Some appellants are filing appeals after making pre-deposit payments through DRC-30/GSTR-3B. In our view, this has very wide ramifications and certainly requires the CBI & C to step in and issue suitable clarifications/guidelines/ answers to the FAQs. We would expect CBI & C to take immediate action since the issue has been escalated by Mr. Lal over eight months ago. 9. In the circumstances, we hereby quash and set aside the impugned orders dated 13th April 2022 and direct respondent no.3 to hear petitioner denovo and pass such orders as he deems fit on merits in accordance with law. 10. Respondent no.3 to dispose the appeals within six weeks of this order being uploaded. Before passing any order, respondent no.3 shall grant personal hearing and notice of personal hearing shall be communicated atleast 7 working d....
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....) of the CGST Rules 2017. Further, in GST regime, in connection with appeal mechanism under section 107 of the CGST Act. 2017. Rule 108 (1) of the CGST Rules, 2017 provides Form GST APL-01 for filing an appeal with option of payment of admitted amount and pm-deposit through electronic cash/credit ledger. Thus, under GST Act also. Form GST DRC-03 is not a prescribed mode for payment of pre-deposit. 3. Attention is invited to Miscellaneous transitional provisions sub-section (6)(b) subsection (7) (a) and sub-section (8) (0) of section 142 of the GGST Act. 2017, which, inter alia, provides that any credit, tax, interest, fine or penalty recoverable from the person before, on or after 1st July, 2017 under the existing law (Central Excise Act and Chanter-V of Finance Act 1994) shall be recovered as an arrear of tax under CGST Act, it is, however, settled that pre-deposit as a requirement for exercising the right to appeal neither is in the nature of duty nor can be treated as arrears under the existing law and hence cannot be said to be covered under transitional provisions of CGST Act. 4. In view of above, it is clarified that payments through DRC-03 under GGST regime....
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.... credit ledger, to which Appellants surplus CENVAT Credit were transited into. Now going by the close reading of the Section 174 sub-Section 1(f) repeal of Central Excise Act or amendment of Finance Act, 1994 would not affect any proceeding relating to an appeal instituted after the commencement of GST Act and a deeming friction is brought into service by stating that to continue such proceedings under the Amended Act (Finance Act) or Repealed Act (Central Excise Act), it would be taken as if the CGST Act had not come into force and such amendment or repeal had not taken place. This being the dictate of the Statute, CENVAT Credit that was available with Appellant on 01.07.2017 would be treated to have been in existence during filing of the appeal as if no transition to TRAN-1 had taken place. It is needless to mention here that Appellants had huge CENVAT Credit available with them and since Section 35F is silent about the mode of payment though long practice and judicial decisions, permitted payment made at the time of investigation, payment made upon own assessment of tax liability and debit from the CENVAT Credit account as proper mode of pre-deposits when Central Excise Act and ....