Jharkhand High Court
Akshay Steel Works Pvt. Ltd vs Union Of India on 27 June, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(T) No. 2165 of 2021
Akshay Steel Works Pvt. Ltd., a company incorporated under the
Companies Act, 1956, having its office at B-37/ 38, Phase II, Industrial
Area, Adityapur, Jamshedpur- 832109, P.O and P.S. - Adityapur, District
- West Singhbhum, through its Managing Director, Mr. Rajendra
Sachdev, son of Late Mr. M.R. Sachdev, aged about 55 years, resident of
House No. 1, Loyola School Area, Bistupur, P.O. and P.S. Bistupur,
Town- Jamshedpur, district- East Singhbhum, 831001. ... Petitioner
Versus
1.Union of India, through the Secretary, Department of Revenue, Ministry
of Finance, Government of India, North Block, P.O. and P.S. New Delhi
(GPO) District- New Delhi, 110001
2.Commissioner of Central Goods and Services Tax and Central Excise ,
Jamshedpur, having its office at Outer Circle Road, Bistupur- 831001,
P.O. and P.S. Bistupur, Town- Jamshedpur, District- Singhbhum East
3. Superintendent, Central Goods and Services Tax and Central Excise,
Adityapur-II Range, Adityapur Circle, Jamshedpur, having its office at
Room No.308, 2nd Floor, South Wing, Outer Circle Road, Bistupur-
831001, P.O and P.S. Bistupur, Town-Jamshedpur, District- Singhbhum
East. ..... Respondents
---------
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan
---------
For the Petitioner : Mr. Salona Mittal, Advocate
For the Respondents : Mr. P.A.S. Pati, Advocate
---------
07/ 27.06.2022 Heard learned counsel for the parties.
2. Petitioner is engaged in the business of manufacturing steel angles, channels, bars and rods and is registered under the GST Act. In course of business, it used to engage in certain services and pay service tax under forward charge and/or reverse charge mechanism (wherever applicable). Petitioner sought to avail of the Input Tax Credit in its favour by filing Form GST TRAN-1 in respect of certain services provided for man power supply for various activities such as material handling, loading and unloading. The present writ petition relates to three invoices issued by service providers/ contractors that provided man power supply to the petitioner. Details of such service providers, Bill Amount, Bill Date and Bill Number are reproduced herein below in a tabular format.
Sr No. Service Provider Bill Date Bill No. Bill
Amount
1. Satyendra Prasad 28.06.2017 3-2017-18 Rs. 4,98,952
2. Niru Singh 28.06.2017 NS/ 016 Rs. 5,29,213
3. M/s. Adarsh 30.06.2017 AA/013/2017- 2018 Rs.2,18,042
Associates
2
In respect of these three invoices, the service tax was to be paid by the petitioner as a recipient through reverse charge mechanism. The payment of service tax against these three invoices were made on 12.08.2017. The Superintendent, C.G.S.T. & CX, Adityapur - II Range, however, disallowed the credit on account of delay of one day in recording the invoices in his books of account vide letter dated 12 th February, 2020, which is impugned herein. On his rectification application, the Commissioner, C.G.S.T. & CX, Jamshedpur allowed Transitional Credit to the tune of Rs.1,73,989/- but remaining tax of Rs. 1,74,469 paid on 12.08.2017 was disallowed to be transited under the G.S.T. regime as the tax had been paid later on. The Commissioner, C.G.S.T., however, accepted that in terms of Section 140 (5) of the Central Goods and Services Tax Act, 2017, the invoice or any other duty or tax paying document could be recorded in the books of account by 31 st July, 2017. Petitioner is aggrieved by the letter dated 31st March, 2021 issued by the Commissioner, C.G.S.T. & CX, Jamshedpur (Annexure 8) to the extent it has disallowed Transitional Credit of Rs.1,74,469/- as being without jurisdiction.
3. Learned counsel for the petitioner has referred to Section 140 Sub section (5) and submitted that there is no availment of Transitional Credit before payment of service tax. Filing of TRAN-1 before payment of tax when there has been no availment of Input Tax Credit is only a technical defect. The Commissioner, C.G.S.T. & CX, Jamshedpur, instead of confining itself to the condonation of delay application, went beyond jurisdiction in disallowing the Input Tax Credit to the tune of Rs.1,74,469/- without any proper proceeding. Neither the letter nor the spirit of the relevant provisions have been violated by the petitioner. There is no serious breach on the part of the petitioner as the Transitional Cenvat Credit was credited in the electronic credit ledger only on 20th September, 2017, as per Annexure-9 to the supplementary Affidavit dated 17th February, 2022. Therefore, he has sought quashing of that part of the order dated 31 March, 2021, whereby the Transitional Credit of Rs.1,74,469/- has been disallowed.
4. Learned counsel for the respondent - C.G.S.T. Mr. P.A.S. Pati, has, at the outset, submitted that the writ petition is premature as no proceeding for wrongful availment of Input Tax Credit has been initiated against him. The Commissioner, C.G.S.T. has only incidentally mentioned the transition of Input Tax Credit to the tune of Rs.1,74,469/-, being claimed by the petitioner through TRAN-1 without tax being paid, as is the requirement 3 under Section 140 (5) of the Act. However, learned counsel for the respondents has specifically referred to paragraph 59 of the counter affidavit that petitioner has statutory remedies available under the Act in case any proceeding for disallowing or recovery of the instant Transitional Credit is initiated.
5. We have considered the submission of learned counsel for the parties in the limited canvass of facts placed on record and the provisions of the C.G.S.T. Act relied upon. We are of the considered view that the observations made by the Commissioner, C.G.S.T. & CX, Jamshedpur in his letter/order dated 31st March, 2021 (Annexure 8) towards disallowance of Transitional Credit to the tune of Rs.1,74,469/- is only incidental to the main subject of condonation of delay being considered by him in respect of entries in the books of account to be made up to the extended period of 30 days beyond 1st July, 2017, i.e. 31st July, 2017. The Commissioner, C.G.S.T., in fact, has admitted valid Transitional Credit of Rs. 1,73,989/-, but, in the absence of any proceeding contemplated under relevant provisions of the C.G.S.T. Act, the observations relating to disallowance of remaining amount of Transitional Cenvat Credit of Rs. 1,74,469/- against tax paid on 12th August, 2017 was uncalled for. This could not prejudice the case of the petitioner in case a fresh proceeding is initiated on that ground. Needless to say the petitioner would have his remedies in case such a proceeding is initiated in accordance with law.
6. Writ Petition is accordingly disposed of with the aforesaid observations.
(Aparesh Kumar Singh, J.) (Deepak Roshan, J.) sm/pramanik