2025 (12) TMI 441

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....022 passed U/s 74 of GST Act, 2017, by the Respondent No.2, and further directing respondents not to initiate recovery of tax (IGST) of Rs. 4,17,997/-, Interest of Rs. 1,06,589/- and Penalty of Rs. 4,17,997/-, totaling to Rs. 9,42,584/- in pursuance to the impugned order dated 20.12.2022 passed by Assistant Commissioner, Moradabad Sector-1, Moradabad, Uttar Pradesh. 3. The learned counsel for the petitioner submits that the petitioner is a registered dealer and is having GSTN. The petitioner is engaged in the business of supply of waste, Parings and scrap of plastic, of Polymers, of Ethylene etc. 4. The petitioner purchased old scrap batteries from Mohan Enterprises, Muzaffarpur, Bihar on 28.6.2021 who in turn issued Tax Invoice No. M....

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....ell but tax receipt has been deposited. Not being satisfied with the said reply, an order was passed under Section 74 reversing the input tax credit with an amount of Rs. 4,17,997/- and interest of Rs. 1,06,589/- and penalty of Rs. 4,17,997/- was imposed and against the same an appeal was filed which has been dismissed without considering the materials on record by the impugned order dated 5.2.2024. He submits that at the time of transaction selling dealer was registered and he has filed its return GSTR-1 and GSTR-3B. He submit once GSTR-1 is filed, GSTR-2A auto generates which open window for filing of GSTR 3B. The purchaser can only view that tax have been paid and deposit with Department. 7. Once the tax have been paid by the selling ....

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....he petitioner has failed to prove any cogent material that the goods have been purchased from the registered dealer and there was actual movement of goods. He submits that the burden of proving the actual movement of goods from the place is on selling dealer and in the absence thereof the claim of ITC has rightly been reversed. In support of his submission he relies upon the judgment of the Apex Court in the case of the The State of Karnataka Vs. M/s Ecom Bill Coffee Trading Pvt. Ltd.(Civil Appeal No. 230 of 2023) decided on 13th March, 2023. He submits that the petitioner has to prove beyond doubt that the goods have actually moved for claiming any exemption or deduction or ITC. In support of his contention he further relies upon the judgm....

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.... the authorities have failed to consider the fact that GSTR-3B and GSTR-2A, as prescribed under the Act, which was auto populated to which not a single word has been whispered in the impugned orders. Contrary, an observation has been made against the petitioner that has failed to bring on record any cogent material that the seller has deposited the tax is against the record. 14. This Court in the case of Solvi Enterprises (supra) has categorically held that the proceedings under Section 74 of the GST Act can be initiated against the dealer if ITC has wrongly been availed or utilized by reason of fraud or willful wrong statement of facts or by means of fraud and upon adjudication can recover the same but the case in hand is not such. 1....