M/S Forging INDIA Iron And Steel LTD vs. Union Of INDIA And Ors.
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These two appeals, one by M/s Forging India Iron and Steel Limited (petitioner) and the other by the Joint Commissioner of Central Tax, Howrah CGST and CX Commissionerate (department), arise from an order of the learned writ court. The petitioner was aggrieved by certain portions of the order, while the department was aggrieved by the entire order. The writ court had permitted the cross-examination of one Niraj Kumar Nathani. The department contended that Nathani's statement was merely corroborative and other evidence, including statements of the company's directors and documentary evidence, indicated that the Input Tax Credit (ITC) availed was ineligible and based on fake documents. The department argued that it could proceed without Nathani's statement. The High Court noted that the case involved numerous disputed factual issues, making it inappropriate for the writ court to adjudicate.
Held
The Court held that the statement of Niraj Kumar Nathani need not be referred to if the assessee files a statutory appeal before the appellate authority. The Court found that a lot of factual issues were involved in the case, and it was not appropriate for the writ court to adjudicate on these disputed facts. Therefore, the assessee was necessarily relegated to file an appeal before the appellate authority, the Commissioner (Appeal) CGST & Central Excise Appeal-II Commissionerate, Kolkata. The impugned order was set aside, and the assessee was directed to prefer an appeal before the appellate authority in terms of Section 107(1) of the CGST Act, 2017. The appellate authority was directed to decide the appeal petition without reference to the statement recorded of Niraj Kumar Nathani, and to adjudicate all other issues, passing a reasoned order on merits after affording an opportunity of personal hearing. The Court directed the assessee to file the appeal within 45 days from the receipt of the server copy of the order, complying with the pre-deposit condition, and permitted manual filing due to the belated nature of the appeal. All issues were left open to be adjudicated. The observations made by the learned Single Bench in the impugned order were also set aside.
Key Issues
1. Whether the learned writ court erred in permitting the cross-examination of Niraj Kumar Nathani, considering the department's contention that his statement was merely corroborative and other substantial evidence existed to establish the ineligibility of availed ITC based on fake documents. Petitioner's arguments: Not explicitly recorded in the judgment. Revenue's arguments: The statement of Niraj Kumar Nathani is only a corroborative statement. There is other abandoned material, including the statement of the directors of the appellant/company, which clearly shows that the ITC availed was ineligible and based upon fake documents. Therefore, the department can very well proceed with the matter de hors the statement of Niraj Kumar Nathani. The learned writ court ought to have held that the statement of Niraj Kumar Nathani is nothing but a corroborative one, apart from other evidences including the investigation and inspection report issued by the Bureau of Investigation, Government of West Bengal, Commercial Taxes, as well as from the other documentary evidence relied upon by the adjudicating authority in the order-in-original dated 30.10.2024.
Sections Cited
Section 107(1)
AI-generated summary — verify with the full judgment below
2025 Item Nos.7 & 9 gd/s MAT/337/2025 M/S FORGING INDIA IRON AND STEEL LIMITED VS UNION OF INDIA AND ORS. IA NO: CAN/1/2025 with MAT/384/2025 THE JOINT COMMISSIONER OF CENTRAL TAX, HOWRAH CGST AND CX COMMISSIONERATE VS M/S FORGING INDIA IRON AND STEEL LIMITED AND ORS. IA NO: CAN/1/2025
Mr. Debasish Ghosh. Mr. Lalit Baid, Ms. Sudeshna Ghosh, Ms. Sanjana Shaw, Mr. Raunak Seal, Ms. Shreya Saha ..for the Appellant in MAT 337 of 2025 and for the Respondent No.1 In MAT 384 of 2025. Mr. Uday Shankar Bhattacharya, Mr. Tapan Bhanja ..for the Respondents in MAT 337 of 2025. and for the Appellant in MAT 384 of 2025. Mr. Koushik Dey, Mr. Sujit Mitra ..for the Respondent No.
Mr. Abhradip Maity ..for the Respondent No.4. 1. These two appeals, one by the writ petitioner and other by the department.
The petitioner is aggrieved by certain portions of the order and the department is aggrieved by the entire order by which the learned writ court has
2 permitted cross-examination of one Niraj Kumar Nathani.
Elaborate submissions were made by the learned advocates appearing for the appellants in both the appeals.
The stand taken by the department is that the statement of Niraj Kumar Nathani is only a corroborative statement but there are other abandoned material including the statement of the directors of the appellant/company which clearly shows that the ITC availed was ineligible and based upon fake documents, If such is the position, the department can very well proceed with the matter de hors the statement of Niraj Kumar Nathani.
We find from the memorandum of appeal filed by the Joint Commissioner of Central Tax, Howrah CGST & CX Commissionerate that the stand taken by the department is that the learned writ court ought to have held that the statement of Niraj Kumar Nathani is nothing but a corroborative one apart from other evidences including the said investigation and inspection report issued by the Bureau of Investigation, Government of West Bengal, Commercial Taxes as well as from the other documentary evidence relied upon by the adjudicating authority in the order-in-original dated 30.10.2024. 3
In the light of the said stand, we are of the view that the said statement need not be referred to in the event the assessee files a statutory appeal before the appellate authority.
Another aspect which we have taken note of is that lot of factual issues were involved in this case and it will not appropriate for the writ court to adjudicate on the facts much of which is being disputed by the parties.
Therefore, necessarily the assessee has to be relegated to file an appeal before the appellate authority, namely, the Commissioner (Appeal) CGST & Central Excise Appeal-II Commissionerate, Kolkata.
In the light of the above, the order impugned is set aside and the direction to the assessee to prefer an appeal before the appellate authority in terms of Section 107(1) of the CGST Act, 2017 and the appellate authority shall decide the appeal petition without reference to the statement recorded of Niraj Kumar Nathani, apart from that the appellate authority shall adjudicate all other issues and pass a reasoned order on merits and in accordance with law after affording an opportunity of personal hearing to the parties.
In the light of the fact that the time for preferring the appeal has already expired, we direct the assessee to file the appeal within 45 days from the date of receipt of server copy of this order and the assessee
4 shall comply with the pre-deposit condition. The assessee shall be permitted to file the appeal manually as the online filing may not be possible as appeal is belated.
Needless to state, all issues are left open to be adjudicated.
In the light of the observations made by the learned Single Bench in the impugned order are also set aside.
Accordingly, both the matters stand disposed of.
(T. S. SIVAGNANAM)
CHIEF JUSTICE
(CHAITALI CHATTERJEE (DAS), J.)
Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.