M/S.Kali Aerated Water Works vs. The Superintendent Of CGST And Central Excise
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Cause title — parties, addresses and appearances
O R D E R In this Writ Petition, the petitioner has challenged the impugned Order-In-Original No.01/2022 dated 13.12.2022 passed by the respondent for the Assessment Year 2017-2018 which preceded the Notice in Form GST ASMT-10 dated 28.04.2022 and the Show Cause Notice in Form GST DRC-01 dated 20.10.2022. 2. The petitioner has replied to the Show Cause Notice. However, the respondent has confirmed the demand. It is noticed that the dispute has arisen on account of the variations between the input tax credit availed by the petitioner in Form GSTR-3B and the auto-populated input tax credit in Form GSTR-2A. After the impugned order was passed on 13.12.2022, the Board has issued Circular No.183/15/2022-GST [F.No.CBIC-20001/2/2022-GST] dated 27.12.2022. Relevant portion of the said Circular reads as under:- _____________ Page No. 2 of 7 https://www.mhc.tn.gov.in/judis “4.1 In order to verify the condition of clause (c) of sub-section (2) of Section 16 of CGST Act that tax on the said supply has been paid by the supplier, the following action may be taken by the proper officer: 4.1.1 In case, where difference between the ITC claimed in FORM GSTR-3B and that available in FORM GSTR 2A of the registered person in respect of a supplier for the said financial year exceeds Rs 5 lakh, the proper officer shall ask the registered person to produce a certificate for the concerned supplier from the Chartered Accountant (CA) or the Cost Accountant (CMA), certifying that supplies in respect of the said invoices of supplier have actually been made by the supplier to the said registered person and the tax on such supplies has been paid by the said supplier in his return in FORM GSTR 3B. Certificate issued by CA or CMA shall contain UDIN. UDIN of the certificate issued by CAs can be verified from ICAI website https://udin.icai.org/search-udin and that issued by CMAs can be verified from ICMAI website https://eicmai.in/udin/VerifyUDIN.aspx. 4.1.2 In cases, where difference between the ITC claimed in FORM GSTR-3B and that available in FORM GSTR 2A of the registered person in respect of a supplier for the said financial year is upto Rs 5 lakh, the proper officer shall ask the claimant to produce a certificate from the concerned supplier to the effect that said supplies have actually been made by him to the said registered person and the tax on said supplies has been paid by the said supplier in his return in FORM GSTR 3B. .... _____________ Page No. 3 of 7 https://www.mhc.tn.gov.in/judis
These instructions will apply only to the ongoing proceedings in scrutiny/audit/ investigation, etc. for FY 2017-18 and 2018-19 and not to the completed proceedings. However, these instructions will apply in those cases for FY 2017-18 and 2018-19 where any adjudication or appeal proceedings are still pending.
Difficulty, if any, in the implementation of the above instructions may please be brought to the notice of the Board. Hindi version would follow.”
Dealing with the similar case, this Court has already set aside the Assessment Orders and remitted the case back to the Assessing Officer to pass fresh orders, in the following three cases:- Sl. No. W.P.(MD) No. Name of the Parties Date of the order 1 2203/2023 M/s.Atchaya Agencies Vs. The Superintendent of CGST & Central Excise, Aruppukottai Range 03.02.2023 2 1704/2023 M/s.Benit & Co. Electronics (P) Ltd. Vs. The Superintendent (Audit) Team-1, O/o. The Assistant Commissioner of CGST & Central Excise, Madurai Audit Circle 03.02.2023 3 3967/2023 M/s.Muthukumar Medical Agencies Vs. The Superintendent of CGST & Central Excise, Thiruparankundram Range, Madurai -I Division 02.03.2023 _____________ Page No. 4 of 7 https://www.mhc.tn.gov.in/judis
In view of the same, this Writ Petition is disposed of by setting aside the impugned order and the case is remitted back to the respondent to pass suitable orders by applying the Circular to the facts of the case as well although the Circular states that it is applicable only where the proceedings are pending. This exercise shall be carried out by the respondent within a period of 60 days from the date of receipt of a copy of this order.
The petitioner is given liberty to make additional submission, if any, together with Certificate as is contemplated under the Circular.
In the result, this Writ Petition is disposed of with the above observations. No costs. Consequently, connected Miscellaneous Petition is closed.
2024 Index: Yes/ No Neutral Citation: Yes / No Speaking Order / Non-Speaking Order JEN _____________ Page No. 5 of 7 https://www.mhc.tn.gov.in/judis Copy To: The Superintendent of C.G.S.T. & Central Excise, Virudhunagar-I Range, Central Excise Staff Quarters Campus, Madurai Road, Virudhunagar-626 001. _____________ Page No. 6 of 7 https://www.mhc.tn.gov.in/judis C.SARAVANAN
, J.
JEN and W.M.P.(MD) No.5109 of 2023 25.06.2024 _____________ Page No. 7 of 7 https://www.mhc.tn.gov.in/judis
Reproduced from the public record of the Madras High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.