Case Law Details

Case Name : Sh. Pushpak Chauhan Vs Harish Bakers & Confectioners Pvt. Ltd. (NAA)
Appeal Number : Case No. 45/2020
Date of Judgement/Order : 18/08/2020
Related Assessment Year :

Sh. Pushpak Chauhan Vs Harish Bakers & Confectioners Pvt. Ltd. (NAA)

Section 112 of the Finance Act, 2019 specific penalty provisions have been added for violation of the provisions of Section 171(1) which have come in to force w.e.f. 01.01.2020, by inserting Section 171(3A).

Since, no penalty provisions were in existence between the period W.e.f. 16.11.2017 to 31.03.2018 when the Respondent had violated the provisions of Section 171(1), the penalty prescribed under Section 171(3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 01.01.2019 issued to the Respondent for imposition of penalty under Section 122(1)(i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.

FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING APPELLATE AUTHORITY

1. The brief facts of the present case are that the Applicant No. 2 (herein-after referred to as the DGAP) vide his Report dated 18.06.2018,furnished to this Authority under Rule 129 (6) of the Central Goods & Services Tax (CGST) Rules, 2017, had submitted that he had conducted an investigation on the complaint of the Applicant No. 1 and found that the Respondent had not passed on the benefit of reduction in the rate of GST from 28% to 18% in respect of the two products viz. the Nestle Munch Nuts 32 Gm. Chocolate and the Cadbury Dairy Milk Chocolate with effect from 15.11.2017, as per the provisions of Section 171 (1) of the CGST Act, 2017. Vide his above Report the DGAP had also submitted that the Respondent had denied the benefit of GST rate reduction to his customers amounting to Rs. 15,958/-pertaining to the period w.e.f. 15.11.2017 to 31.03.2018 and had thus indulged in profiteering and violation of the provisions of Section 171 (1) of the above Act.

2. This Authority after careful consideration of the Report dated 18.06.2018 had issued notice dated 25.06.2018 to the Respondent to show cause why the Report furnished by the DGAP should not be accepted and his liability for violation of the provisions of Section 171 (1) should not be fixed. After hearing both the parties at length this Authority vide its Order No. 17/2018 dated 07.12.2018 had determined the profiteered amount as Rs. 15,958/- as per the provisions of Section 171 (2) of the above Act read with Rule 133 (1) of the CGST Rules, 2017 pertaining to the period from 15.11.2017 to 31.03.2018 and also held the Respondent in violation of the provisions of Section 171 (1).

3. During the course of the hearing therefore, it was held that the Respondent had not only collected extra amount on account of price of the above products from the consumers but he had also compelled them to pay more GST on the additional amount realised from them between the period from 15.11.2017 to 31.03.2018 and therefore, he had apparently committed an offence under Section 122 (1) () of the CGST Act, 2017 and hence, he was liable for imposition of penalty under the provisions of the above Section.

4. The Respondent was issued notice dated 01.01.2019 asking him to explain why the penalty mentioned in Section 122(1) read with Rule 133 (3) (d) should not be imposed on him.

5. The Respondent vide his submissions dated 09.01.2019 has stated that the penal provisions under Section 122 of the Act read with Rule 133(3)(d) of the CGST Rules, 2017 should not be invoked and penalty should not be imposed on him as he had accepted and paid the amount which had been determined by this Authority. He also submitted proof of payment of the profiteered amount to the Applicant No. 1 and Consumer Welfare Fund as directed by the Authority vide Order No. 17/2018. He inter alia made a number of submissions for non imposition of penalty. The main submission he has made is that penalty should only be imposed when there is a mens rea and deliberate attempt to violate the provisions of law and  as he has complied with this Authority’s Order No. 17/2018 which depicted his bonafide intentions, penalty should not be imposed upon him.

6. We have carefully considered the submissions of the Respondent and all the material placed before us and it has been revealed that the Respondent has not passed on the benefit of reduction in GST rate from 28% to 18% on the above products w.e.f 15.11.2017 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.

7. It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122(1)(i) of the above Act as he had apparently Is Sued incorrect or false invoice while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefits of tax reduction and ITC and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the above Act.

8. It is further revealed that vide Section 112 of the Finance Act, 2019 specific penalty provisions have been added for violation of the provisions of Section 171(1) which have come in to force w.e.f. 01.01.2020, by inserting Section 171(3A).

9. Since, no penalty provisions were in existence between the period W.e.f. 16.11.2017 to 31.03.2018 when the Respondent had violated the provisions of Section 171(1), the penalty prescribed under Section 171(3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 01.01.2019 issued to the Respondent for imposition of penalty under Section 122(1)(i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.

10. Copy of this order be supplied to both the parties. File be consigned after completion.

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