Bharathi Cement Corporation Pvt. Ltd. Vs Additional Commissioner of Central Tax (Andhra Pradesh High Court)
Once the declarant had made payment of the estimated amount as per the statement in the form of SVLDRS-3 within the stipulated time, it was beyond the jurisdiction of the respondents to proceed with adjudication of the show-cause notice issued under the Central Excise Act with regard to the self same subject matter and pass impugned order-in-original, dated 10.2020. However, it is the matter of adjudication whether availing of Scheme would attach legitimacy to the Cenvat credit on GTA and C&F Agency services to the tune of Rs.17,34,56,893/- and the same would be eligible for the purpose of transition under Section 140 of the GST Act. Thus, impugned show-cause notice, dated 10.11.2020, issued upon the petitioner with regard to availing of transitional credit under Section 140 of the GST Act in respect of the aforesaid Cenvat credit cannot be said to be without jurisdiction. Thus, we do not wish to interfere with the said show-cause notice and leave it open to the adjudicating authority to take appropriate decision thereon. With regard to the issue of the 1st respondent – Designated Committee refusing to issue discharge certificate under Sub-section (8) of Section 127 of the Finance Act, we opine that there is nothing in the Scheme which empowers the said respondent to refuse issuance of the discharge certificate on the basis of any subsequent event apart from the fact of discovery of false statement relating to any material particular in the declaration. Availing of transitional credit by the petitioner under the GST Act on the Cenvat credit for GTA and C&F Agency services under the Central Excise Act is a subsequent and separate transaction from the declaration made by him under the Scheme and the adjudication of such claim cannot be said to be barred in law or without jurisdiction. Hence, we set-aside the letter, dated 24.11.2020, and remand the matter to the 1st respondent – Designated Committee to consider the issuance of discharge certificate without prejudice to the adjudication under the aforesaid show-cause notice, dated 10.11.2020, issued under the GST Act.
In view of the aforesaid facts, we dispose of these Writ Petitions directing as follows:
(i) The impugned order-in-original, dated 10.2020, passed by the Respondent-Principal Commissioner of Central Tax GST Commissionerate, Tirupati, is set- aside;
(ii) Letter, dated 24.11.2020, issued by the Respondent- Commissioner of Central Tax GST Commissionerate, Tirupati, is also set-aside and the matter is remanded to the 1st respondent – Designated Committee to consider the issuance of a discharge certificate under Sub- section (8) of Section 127 of the Finance Act without prejudice to the adjudication in the show-cause notice, dated 11.2020, issued under the GST Act; and
(iii) The respondents shall proceed with the adjudication of show-cause notice, dated 10.11.2020, after giving an opportunity to the petitioner to respond thereto and the same shall be disposed of as expeditiously as possible and in accordance with law.
FULL TEXT OF THE HIGH COURT ANDHRA PRADESH JUDGMENT/ORDER
All these Writ Petitions are heard analogously and are disposed of by way of this common order.
2. Factual matrix giving rise to the proceedings are as follows:
Petitioner is in the business of manufacturing ‘cement and clinker’ falling under Chapter 25 of the Central Excise Tariff Act, 1985 (hereinafter referred to as ‘the existing law’). During the period from 2014 to June, 2017, the petitioner made sales to customers on ‘for destination basis’ from its factory and depots. Petitioner availed credit on the services of GTA and C&F Agents used for outward transportation of goods from factory to customers’ premises for the said period, as follows:
