TaxTMI 
TaxTMI 
2024 (6) TMI 344
X X X X Extracts X X X X
X X X X Extracts X X X X
.... self-assessed output tax is no longer in existence in the amended Section 41 w.e.f. 01.10.2022. Learned Counsel also referred to the provisions of Section 49 of CGST Act, which provides that the credit can be utilized for any payment towards output tax. Relying on the provisions of Section 49(4), learned counsel submits that the said provision is in consonance with the erstwhile provisions of Rule 3(4) of Cenvat Credit Rules, 2004, which permitted utilization of credit for payment of any duty on the final product or service tax on any output service, whereby the mandatory pre-deposit from cenvat credit ledger has been accepted by the Tribunal as per Circular No.15/CESTAT/General/2013-14 dated 28.08.2014. Learned counsel relied on the decisions of the various High Courts in :- (a) M/s. Oasis Reality Vs. Union of India & Ors. (Bombay High Court) [2023 (71) GSTL 158 (Bombay)/(2023) 3 Centax 86 (Bom.)], (b) M/s. Tulsi Ram and Company Vs. Commissioner (Allahabad High Court) [2022 (67) GSTL 62(All.)], (c) M/s. Larsen & Toubro Ltd. Vs. Joint Commissioner & Ors. (Madras High Court) [W.P. Nos. 24577 and 24579 of 2023 & W.M.P. Nos. 23999 and 24002 of 2023 dated 21.08.2023] (d) M/s. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder Section 107 of the CGST Act, 2017, Rule 108(1) of the CGST Rules, 2017 provides Form GT APL-01 for filing an appeal with option of payment of admitted amount and pre-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), sub-section (7)(a) and subsection (8)(a) of Section 142 of the CGST 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 Chapter-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 the above, it is clarified that payments through DRC-03 under CGST regime is not a valid mode of payment for making pre-deposits under Section 35 F of CEA, 1944 and Sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce of pre-deposit made through debit of DRC-03 Account maintained under GST regime. With due respect, learned Members observed that though Section 41 was amended w.e.f. 01.10.2022, vide Finance Act, 2022 (6 of 2022), however, the Circular dated 28.10.2022 has been issued without referring to the amendment or Rule 108(1) of the CGST Rules, 2017 that prescribes form and provides options for filing of appeals under the CGST Act and not under the Central Excise Act except observing that payment through DRC-03 is not a valid mode of payment under Section 35F of the Finance Act despite the fact that Rule 108(1) of the CGST Rules, 2017 permits payment through the electronic cash as well as credit ledger. Referring to the decision of the Supreme Court in Commissioner of Central Excise, Bangalore Vs. M/s. Mysore Electricals Industries Ltd. [2006 (204) ELT 517(SC)], wherein it has been held that the beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively and since the said circular has been issued after the filing of the appeals, the enforcement of the same can only have prospective effect and therefore, the pre-deposit made by the appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of the Allahabad High Court also decided the issue relying on the Circular dated 06.07.2022, referring to the proceedings instituted under the provisions of GST Laws for utilization of the amount available in the Electronic Credit Ledger of the registered person. 10. The aforesaid two decisions are clearly distinguishable as the same are based on the Circular dated 06.07.2022 which has been issued by the GST Policy Wing and the subject of the Circular itself refers to:- "Subject:-Clarification on various issue pertaining to GST- Reg." Further, the relevant part of the Circular reads:- Utilization of the amount available in the electronic credit ledger and the electronic cash ledger for payment of tax and other liabilities. 6. Whether the amount available in the electronic credit ledger can be used for making payment of any tax under the GST Laws? 1................................................. 2................................................ 3................................................. 4. Accordingly, it is clarified that any payment towards output tax, whether self-assessed in the return or payable as a consequence of any proceeding instituted unde....