Part-163-One Pager Snapshot to Cases on Section 61,73, 75 and 129 of CGST Act, 2017

-Section 73-SCN only can be taken forward, by permitting the petitioner to urge all contentions in relation to the SCN and thus. statement of one of the transporters recorded during enquiry, needs to be provided to the petitioner

-Section 129- Delivery Note and Delivery Challan are different documents and penalty confirmed since goods during movement only had delivery note and not delivery challan as required under Rule 55 read with Rule 138 along with document substantiating goods were sent for approval and payment of tax & penalty also voluntarily deposited by petitioner at the time of release of goods

-Section 75-Impugned order quashed as authority neither replied to the request of petitioner for grant of 30-days time to file reply nor did it provide opportunity of being heard even though the same was requested by the petitioner

-Section 61-Impugned SCN stayed as Court prima facie found force in contention of petitioner that issuance of SCN U/Sec 73 was without compliance of the mandatory conditions precedent, prescribed under provisions of Section 61 r/w Rule 99, to derive jurisdiction to issue SCN U/sec 73

Part-113-One Pager Snapshot to the Latest Cases on Section 16(4), 107, 129 of CGST Act, 2017 and Section 10 of IGST Act, 2017

-Statement of the Driver for goods to be unloaded at other place
-Goods not enroute the correct route to destination
-Power to seize only to be exercised when goods not accompanying proper documents
-Tax paid under CGST and SGST cannot be claimed as ITC in IGST
-Mere declaration by supplier to treat tax paid under CGST and SGST as IGST not sufficient as Revenue already distributed
-Since invoice pertained to 17-18 but writ filed in 2021, claim of ITC barred by time limit provided in enabling provision in Section 16(4)
-When High Court, at outset, stated that petitioner had an alternative statutory remedy, it ought not to have proceeded to make observations on the merits

S.No

Section

Case Subject

Case

Held

1

Section
129

-Statement of the
Driver for goods to be
unloaded at other
place
-Goods not enroute
the correct route to
destination
-Power to seize only
to be exercised when
goods not
accompanying proper
documents

Om Prakash Kuldeep
Kumar v. Additional
Commissioner Grade-2
[2023] 155 taxmann.com
249 (Allahabad)

The Court observed that the goods in question were sold by the registered dealer along with genuine documents i.e. tax invoices
and e-way bills. At the time of interception it was alleged that driver of the vehicle made statement that goods were to be unloaded at
the place which is not mentioned in the tax invoice but at Mainpuri itself. But perusal of the statement of the truck driver, which was
prepared and uploaded by the revenue authority in GST MOV-01, it appeared that not a single word had been whispered in respect
of the goods in question to be unloaded at the place which was not shown in the tax invoice accompanying the goods.
The Court noted that it was alleged that since goods along with truck were not on the route of its destination, therefore, there was
intention to evade tax. The Court observed that under the GST Act, there was no specific provision which bound the selling dealer
to disclose the route to be taken during transportation of goods or while goods are in transit however there was a provision under VAT
Act to disclose the rout during transportation of goods to reach its final destination. Once the legislature itself in its wisdom had chosen
to delete the said provision, the Court opined that authorities were not correct in passing seizure order even if the vehicle was not on
regular route or on different route.
The power of detention as well as seizure can be exercised only when the goods were not accompanying with the genuine
documents provided under the Act. The genuineness of the documents has not been disputed at any stage. Observation/allegation
was made that at the time of interception/detention of the goods in question, the driver of the vehicle had only produced one tax invoice
and eway bill dated 16-3-2020 but none of the documents as prescribed under the Act was referred or brought on record before the
Court in support of the said contention. Once the documents accompanying the goods were found to be genuine the goods ought not
to have been seized.
Cases Referred- Gujrat High Court in Special Civil Application No. 19549 of 2021 (M/s Karnataka Traders v. State of Gujrat) decided
on 6-1-2022, Telengana High Court in W.P. No. 2869 of 2021, Vijay Metal v. Deputy Commercial Tax Officer, decided on 28-4-2021

2

Section
10 of
IGST
Act,
2017 and
Section
16(4) of
CGST
Act,
2017

-Tax paid under
CGST and SGST
cannot be claimed as
ITC in IGST
-Mere declaration by
supplier to treat tax
paid under CGST and
SGST as IGST not
sufficient as Revenue
already distributed
-Since invoice
pertained to 17-18 but
writ filed in 2021,
claim of ITC barred by
time limit provided in
enabling provision in
Section 16(4)

Vishwanath Iron Store v.
Union of India [2023] 155
taxmann.com 248 (Patna)

The petitioner firm was registered in the state of Bihar. They purchased goods in auction from East Central Railways. The invoice
levied CGST and SGST. The petitioner contended that when tax consultant was apprised of the delivery/sale invoice, it was pointed
out that since goods were taken possession of in Jharkhand and moved to outside the State, what was to be levied was IGST and not
CGST and SGST and in the above circumstances, the petitioner was denied the input tax credit, is the claim raised.
The Court observed that admittedly, goods were delivered at Jharkhand and sale was shown to be a local sale, as evidenced from
delivery/sale release order itself. If the petitioner had intended to move the material out of the State, the petitioner should have specified
it and also insisted that the sale be treated as an Inter-State one. The auction though conducted in Samastipur, the sale was to be
effected from Jharkhand and unless the sale occasioned the movement of goods outside the State, it could not be termed as an InterState sale. Further, there was absolutely nothing to prove in the writ petition as well that the movement of goods to the State of Bihar.
The mere statement of Railways that the invoice issued should be deemed to have been issued under the IGST Act, could not enable
the petitioner to seek input tax credit. The transaction between the Railways and the petitioner would not regulate the tax liability and
in any event, the tax levied and collected as CGST and SGST would have been credited to the respective head of account. There can
be no understanding between the parties to the transaction that what has been paid as SGST and CGST is to be deemed to be paid
as IGST without due compliance of the provisions of the taxation enactment. Such understanding cannot also regulate an input tax
credit without such credit being shown in the ledger account maintained by the assessee with the Department.
It was also noticed that the invoice was one issued in assessment year 2017-18. The petitioner had filed the writ petition in the year
2021 when the enabling provision in Section 16(4) for claiming input tax credit would not have been available in any event. The present
invoice is dated 23-10-2017 and hence, ITC was to be claimed before 28-11-2017 or furnishing of the annual return for the year 2017-
18, whichever is earlier. The Court thus held that there was absolutely no possibility of the ITC being availed of at this point

3

Section
107

When High Court, at
outset, stated that
petitioner had an
alternative statutory
remedy, it ought not to
have proceeded to
make observations on
the merits

Dhan Prakash Gupta v.
Central Goods and
Service Tax Department
[2023] 155 taxmann.com
227 (SC)

The High Court in the given matter had stated that petitioner had alternative remedy but also further stated that since material based
upon which assessment was completed was taken from URLs owned by petitioner and petitioner was also confronted with the material
so gathered and that material was, in any case, in public domain, therefore there was no justification in principles of natural justice
being violated.
The Apex Court held that when the High Court, at outset, stated that the petitioner had an alternative statutory remedy, it ought not
to have proceeded to make observations on the merits of the case and thereafter, state that the petitioner would not be precluded
from pursuing alternative remedies. It was further stated that any observation made on merits of the case in the impugned order shall
not come in the way of the appellate authority considering the case of the petitioner on merits

Part-103-One Pager Snapshot to the Latest Cases on Section 70, Section 107, Section 129, Section 122 read with Section 73, Section 62 read with Section 122 and Section 127

-Presence of Advocate during statement at visible but not at audible distance
-Manual Filing of Appeal in case of order served manually acceptable and Payment of Pre-Deposit through challan on manual filing of appeal acceptable
-Non-mentioning of Vehicle Number in case of no intent to evade, is a procedural error
-For Levying Penalty U/Sec 122(2)(a), procedure U/Sec 73 to be followed
-Having reference to provision of Section 127, penalty can be levied U/Sec 122 for cases wherein order passed U/Sec 62.

S.No

Section

Case Subject

case

Held

1

Section
70

Presence of
Advocate during
statement at
visible but not at
audible distance

Mayur Chavda v.
State of Maharashtra
[2023] 154
taxmann.com 641
(Bombay) (10-04-23)

Petitioner contended that the Court, has time and again permitted presence of an Advocate at a visible, but not at an audible distance and has
also permitted the petitioner therein to videograph the recording of his statement.
The Court allowed petition and permitted the petitioner's Advocate to remain present at the time of recording of the petitioner's statement at a
visible, but not at an audible distance. They also permitted videography of the said petitioner's statement, at the cost of the petitioner. A copy of
the said videography was to be handed over to the petitioner after show cause notice is issued to the petitioner

2

Section
107

Manual Filing of
Appeal in case
of order served
manually
acceptable
Payment of PreDeposit through
challan on
manual filing of
appeal
acceptable

Kotla Kanakeswara
Rao v. Additional
Commissioner
[2023] 154
taxmann.com 640
(Andhra Pradesh)
(22-09-23

The appeal was rejected by the Appellate Authority as the original Assessment Order dated 2-1-2022 was duly served on the same date, but the
appeal was filed in manual form on 28-2-2022 and later e-appeal was filed on 1-9-2022 with a delay of six months and the pre-requisite deposit
of 10% of the disputed tax has not been paid. Petitioner contended that the Assessment Order dated 2-1-2022 was not uploaded on the
website and therefore, he was constrained to file appeal in manual form on 28-2-2022. In the interregnum period the Order was uploaded on the
official website and thus appeal in electronic form was filed on 1-9-2022.
The Court observed that the factum of non-uploading of the Assessment Order dated 2-1-2022 on official website was not disputed and thus,
reason given by petitioner for filing the appeal in manual form can be accepted. The explanation also was plausible as subsequently the copy of
the Assessment Order was uploaded and thereby the petitioner filed e-appeal. The Court also relied upon the decision of Division Bench in
W.P.No.3308/2021 wherein it was observed that manual form of filing appeal is permissible in terms of Rule 108(1). Thus, explanation offered
by the petitioner were held to be plausible and tenable. Further, on a perusal of copy of challan filed along with material papers reflect that
petitioner made a pre-deposit of 10% of the demanded tax on 25-2-2022 i.e., at the time of manual filing of the appeal. Therefore, it was held
that the said requirement was also complied. Thus, appellate authority ought to have admitted the appeal filed in electronic form.

3

Section
129

Non-mentioning
of Vehicle
Number in case
of no intent to
evade, is a
procedural error

Novateur Electrical
and Digital Systems
(P.) Ltd. v. Additional
Commissioner of
State Tax [2023] 154
taxmann.com 637
(Punjab & Haryana)
(11-09-23)

In the instant case, vehicle number was not mentioned in Part-B of the Eway Bill however, All other documents were shown by the driver.
Revenue contended that E-Way Bill was generated without completely filling Part B and thus there was violation of the provisions of law.
The Court referred to Circular dated 14-9-2018 wherein Para (f) refers to error in one or two digits/characters of the vehicle no. while generating
E-Way Bill. The Court observed that case of petitioner falls under clause (f) as he did not mention vehicle no in part B and thus proceedings
under section 129 should not have been initiated. Further, at the time of search of vehicle, Part B was not filled up but the time driver filled up
Part B in the presence of the Officer and hence there was no malafide intention on the part of petitioner. Thus, it was held that proceedings under
section 129 should not have been initiated, as per circular dated 14-9-2018). It was held that the object of circular dated 14-9-2018 was that in
case of circumstances as detailed in the circular, which were procedural in nature and there no intention of misleading the transfer of goods, the
proceedings should not be initiated under Section 129.

4

Section
62 and
Section
122

For Levying
Penalty U/Sec
122(2)(a),
procedure U/Sec
73 has to be
followed

Nandi PVC (P.) Ltd.
v. Union of India
[2022] 145
taxmann.com 4
(Andhra Pradesh)
(14-09-2022

An Assessment Order was passed under Section 62 in Form GSTR ASMT - 13, dated 05.02.2019, demanding the Petitioner to pay tax with
interest and penalty. The penalty was levied under Section 122(2)(a) of the CGST Act, 2017. It was contended that, to impose penalty under
Section 122 of CGST Act, procedure under Sections 73 or 74 is required to be followed, for which a SCN has to be issued.
The Court observed that in order to impose penalty in terms of Section 122(2)(a) of the Act, the demand for recovery should be made following
the procedure under Section 73, in which case, the proper Officer shall issue a notice under Section 73 within three months prior to the time
specified in Section 73(10). It appeared from the record that such a notice was not issued prior to passing of impugned order. Thus, order
imposing penalty was set-aside and matter was remanded back to the authority concerned

5

Section
62,
Section
122 and
Section
127

Having
reference to
provision of
Section 127,
penalty can be
levied U/Sec 122
for cases
wherein order
passed U/Sec
62

Spy Agro Industries
Ltd. v. Union of India
[2022] 139
taxmann.com 69
(Andhra Pradesh)
(05-05-2022)

An order U/Sec 62 was passed and thereafter, the very same authority enlarged the order with certain additional liabilities by styling the order
as Corrigendum-cum-Addendum and inserting para No.4.8 and consequently, directed the petitioner to pay penalty U/Sec 122(2)(a) Thereafter,
the very same authority issued another communication titling it as rectification order under section 161 of CGST Act in order to ratify the
Corrigendum-cum-Addendum. The petitioner contended that entire procedure followed by authorities in imposing penalty without hearing the
petitioner was illegal and incorrect. Department stated that there is no bar for imposing penalty under sections 62 and 122.
The Court observed that as per Section 161 where any rectification adversely affects any person, principles of natural justice shall be followed.
Section 127 of the Act which in view of the Court had some importance deals with power to impose penalty in certain cases. In the instan case,
penalties were imposed creating additional liability, which was not reflected in the earlier notice and No opportunity of hearing was given to the
petitioner. Further, section 62 does not anywhere speak about imposing penalty. It only speaks about liability for payment of interest or for
payment of late fee. Therefore, as per section 127, if penalty is to be imposed in cases, which are not covered under section 62 or section 63 or
section 64 or section 73 or section 74 or section 129 or section 130, the authority can impose penalty after giving reasonable opportunity of
hearing such person. Thus, the orders under challenge were set aside with permission to proceed further by issuing a fresh notice

Part-101-One Pager Snapshot to the Latest Cases on Section 73, Rule 86A, Section 129 and SCN issued on same subject by two authorities

SCN issued on same subject matter issued by two authorities to be decided by one of the authorities
-An earlier order passed under Rule 86A(2) lifting blocking of ITC Ledger, will not preclude assessing officer in passing an order under Section 73/74 to hold that ITC was wrongly availed.
-Conduct of the assessee to be considered in case of expired Eway Bill and having found that the conduct was not with the intention to evade tax, relief to be granted to the assessee

S.No

Section

Case Subject

Case

Held

1

Section
73

SCN on same
subject matter
issued by two
authorities to be
decided by one
of the authorities

LGW Industries Ltd. v.
Assistant
Commissioner, Salt
Lake Charge [2023]
154 taxmann.com 611
(Calcutta) (15-03-
2023

SCN was issued by Assistant Commissioner, Salt Lake Charge on dated 29th Dec 2022 and on the very same issue, Assistant Commissioner,
State Tax, Bureau of Investigation, South Bengal (HQ) had issued notice dated 7th Nov, 2022.
The Court was of the view that if the subject issue is one and the same or if the subject is inter-related, it is always better that one authority
adjudicates the matter. By directing the assessee to face multiple authorities may result in conflicting decisions. Therefore, not only in the
interest of the assessee but in the interest of the revenue also, one authority should take the decision. Admittedly, Bureau of Investigation,
South Bengal was centralised agency and if that agency has already taken up the matter for consideration and the concerned Assistant
Commissioner has issued notice dated 7th Nov, 2022, it was held to be appropriate that issues be considered by the said authority including
the issue, which was raised by the respondent in the SCN dated 29th Dec 2022

2

Section
73/74 and
Rule 86A

An earlier order
passed under
Rule 86A(2)
lifting the
blocking of ITC
Ledger, will not
preclude the
assessing officer
in passing an
order under
Section 73/74 to
hold that ITC was
wrongly availed

D. Ranganathan &
Co. v. Assistant
Commissioner (RAL)
(FAC) [2023] 154
taxmann.com 606
(Madras) (11-04-
2023

For the period 2017-18, petitioner's ITC had been blocked under Rule 86A on the basis that ITC had been availed allegedly, fraudulently.
The petitioner was called upon to file objections and was also heard. Pursuant thereto, an order was passed on 16-7-2021, considering the
request of the petitioner for unblocking of credit under Rule 86A in its favour. Thereafter, notices came to be issued to the petitioner on the
basis of information received by the assessing officer (hereinafter referred as “R 3”) to the effect that suppliers were non-existed or were not
conducting business from the place in which registration had been obtained. The petitioner responded to the SCN by relying on proceedings
dated 16-7-2021. The submissions made before R1 were reiterated before R3, the assessing officer, and, infact response dated 15-11-2022
relies, lock, stock and barrel, on proceedings dated 16-7-2021 only. After considering the explanation and hearing the petitioner in detail, R3
proceeded to pass the impugned order on 5-1-2023.
The Court observed that while passing an order lifting the blocking of credit, the assessing authority was undoubtedly required to examine
whether such block has been validly made. It was thus incumbent upon the officer concerned to examine every aspect of the matter prior to
arriving at a proper decision. However, at the same time, it was also incumbent upon the dealer to establish receipt of the goods or services.
R3, in the impugned order of assessment had proceeded on the basis that the petitioner did not establish movement of goods. In fact, he
referred to various particulars called for by him, such as weighment slips, vehicle receipts for goods transportation, freight for inward and
outward related documents, fuel expenses, stating that such documents were not produced. He thus concluded, that petitioner did not
discharge burden placed upon him to establish movement of goods and, based on such failure as well as the departmental enquiries,
concluded that the transactions were fictitious as the suppliers did not exist. As regards the bank statements, there was an explanation put
forth in the order to the effect that cash has been credited and debited the same day and hence the transactions constituted classic circular
transactions. The High Court, thus concluded that true, R3 ought to have made reference to order of R1 dated 16-7-2021 and undoubtedly,
this was a flaw in the assessment order but not a fatal flaw. The power of an assessing officer under section 73/74 is wide and proceedings
for assessment may be initiated in any circumstance where it appears to the proper officer that the claim of ITC by an assessee is incorrect.
The mere fact that an order has been passed under Rule 86A(2) will not stand in the way of the assessing officer making an assessment or
curtailing his powers in any way, in such an exercise.

3

Section
129

Conduct of the
assessee to be
considered in
case of expired
Eway Bill and
having found
that the conduct
was not with the
intention to
evade tax, relief
to be granted to
the assessee

Usha Martin Ltd. v.
Deputy Commissioner
of State Tax [2023]
154 taxmann.com 610
(Calcutta) (16-06-
2023)

The goods in question were meant for export and the appellants had generated an e-Way Bill which was valid till 12th September, 2019. The
appellants' case was that the goods while being loaded into the vessel had got damaged and as a result, the goods had to be taken back to
the appellants factory at Ranchi for repairs. For such purpose the e-Way Bill was generated based on a challan on 7th September, 2019 which
was valid till 12th September, 2019. In terms of Rule 138(10), an option is given to extend period of e-Way Bill and such extension should be
done before eight hours. Admittedly, eight hour period expired about 8.10 a.m. on 13-9-2019 and at about 8.20 a.m., goods were detained.
The Court observed that on perusal of e-Way Bill, it was seen that no tax was payable since the goods which were owned by the appellants
were taken back to their factory at Ranchi for repairs. The identical issue was considered in various matters earlier by the Court and in all
those matters, conduct of the assessee was considered and having found that the conduct was not with the intention to evade tax, relief was
granted to those assessee’s. The Court thus concluded that case on hand would also fall under the said category since there was no
allegation of any evasion of tax rather it was not disputed that goods were being transported under a cover of challan to the factory of
appellants for carrying out repairs and thus, it was not a fit case where tax and penalty should have been levied on the appellants.
Cases Referred- Progressive Metals Pvt. Ltd. v. The Deputy Commissioner, State Tax, Bureau of Investigation, South Bengal, Durgapur
Zone & Ors. in MAT 562 of 2023 dated 28-4-2023; KDG Projects Pvt. Ltd. v. Assistant Commissioner of State Tax, Bureau of Investigation
(North Bengal) reported in 2022(66) G.S.T.L. 262 (Cal.); Medha Servo Drives Private Limited & Anr. v. The Assistant Commissioner of, State
Tax, Bureau of Investigation (South Bengal), Durgapur Zone & Ors. in MAT 1751 of 2022 dated 17-11-2022

Part-70-One Pager Snapshot to the Latest Cases

-Personal hearing to be afforded , even if petitioner may have signified ‘No’ in the column to avail personal hearing
-Service of Order on the counsel of the petitioner is valid and limitation to file appeal commences from that day
-Audit U/Sec 65 cannot be conducted for a dealer subsequent to cancellation of registration
-Appellate Authority even while considering appeal ex parte will have to consider the grounds raised in the memorandum of appeal
-In case of shortage of goods found in checking during movement, penalty to be levied on the shortage found and not on entire consignment

S.No

Section

Case Subject

Case

Held

1

Section
75(4)

Personal hearing to
be afforded , even if
petitioner may have
signified 'No' in the
column to avail
personal hearing

B.L. Pahariya
Medical Store v.
State of U.P [2023]
153 taxmann.com
659 (Allahabad) 22-
08-23

High Court observed that once it has been laid down by way of a principle of law that a person/assessee is not required to request for
"opportunity of personal hearing" and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an
adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail
personal hearing, would bear no legal consequence. It was further observed that even otherwise in the context of an assessment
order creating heavy civil liability, observing such minimal opportunity of hearing is a must.
Cases Referred- Bharat Mint & Allied Chemicals v. Commissioner Commercial Tax [2022] 136 taxmann.com 275

2

Section 107

Service of Order on
the counsel of the
petitioner is valid
and limitation to file
appeal commences
from that day

Manoj Steel
Traders v. State of
U.P. [2023] 153
taxmann.com 658
(Allahabad) 23-08-
23

From the perusal of provisions of Section 169, it is evident that order communicated on an Advocate will be deemed service upon
petitioner. As per facts of the case, order was duly communicated to the Advocate of petitioner. Petitioner argued that on 26-6-2019, an
application was moved for getting the certified copy of the order through another counsel and on that very day, the appeal was preferred.
However, on the pointed query as to how and under what mode the petitioner came to know about the passing the order dated
28-3-2018 on 26-6-2019 and as to why the application was moved on 26-6-2019 by another counsel, when the order dated 28-3-
2018 was already communicated to the petitioner's Advocate, petitioner could not reply the same and submitted that the appeal
filed below is silent on this point. The fact that it was not disputed at any stage and the only ground taken was that Shri Anil Jain,
Advocate has not informed the petitioner about the order dated 28-3-2018, it was held that the impugned order cannot be interfered with

3

Section 65

Audit U/Sec 65
cannot be
conducted for a
dealer subsequent
to cancellation of
registration

Tvl. Raja Stores v.
Assistant
Commissioner (ST
[2023] 153
taxmann.com 657
(Madras) 11-08-23

The contention of the petitioner was under Section 65, respondents were empowered to conduct audit if the concern was a registered
unit. As on the date, the petitioner's registration was cancelled, and he was an unregistered concern. But the contention of the respondent
was that the audit was being conducted for a period from 2017-2018, 2021-2022. Therefore, the respondent claimed that for the said
period, the petitioner was a registered firm and for the said period, the respondent was empowered to conduct audit.
The High Court observed that Section 65 specifically states that the audit can be conducted for 'any registered person', then it
ought to be construed as existence concern and the unregistered person would be exempted from the purview of the said
section. When the Section provides for periodical audit, the respondent having failed to conduct audit for all these years, suddenly they
cannot wake up and conduct an audit. Therefore, impugned order was quashed with liberty to the respondent to initiate assessment
proceedings under Sections 73 and 74 of the Act.

4

Section 107

Appellate Authority
even while
considering appeal
ex parte will have to
consider the
grounds raised in
the memorandum
of appea

Ganesh Kumar v.
State of Bihar
[2023] 153
taxmann.com 654
(Patna) 11-07-23

Appeal was dismissed that despite opportunity being granted to appellant to produce documents in his support, he did not produce them.
High Court observed that Appellate Authority has a duty and an obligation under the statute to look into the merits of the matter and
also examine the grounds raised by the appellant and decide the issue on merits. The Appellate Authority even while considering the
appeal ex parte will have to consider the grounds raised in the memorandum of appeal, deciding the appeal on merits, failing which it
would be abdicating its powers especially looking at the provisions where the Appellate Authority has been empowered to conduct such
further enquiry as found necessary to decide the appeal, which decision also shall be on the points raised. Therefore, in view of the
above, since the appeal was decided ex-parte, therefore the appellate order was set aside.
Cases Referred- Purushottam Stores vs. The State of Bihar & Ors; CWJC No. 4349 of 2023 decided on 25.04.2023

5

Section 129

In case of shortage
of goods found in
checking during
movement, penalty
to be levied on the
shortage found and
not on entire
consignment

Usha Gupta v.
Assistant
Commissioner of
Revenue, Bureau
of Investigation
[2023] 153
taxmann.com 653
(Calcutta) 30-03-23

In the export invoice, buyer's license number was shown as buyer's order number. The High Court held that this cannot be treated as
a discrepancy because in the purchase order of the buyer the sales order number has been correctly shown as SG/2022-23/004.
Therefore, authorities could not have imposed 200% penalty on the entire consignment.
For the issue regarding shortage of quantity of goods observed in checking of goods during movement and levy of penalty on entire
consignment appeal and writ petition was disposed by setting aside the order passed by the appellate authority for levying
penalty on the entire consignment and the matter was remanded back to the appellate authority to recalculate to take note of
the order and recalculate the penalty in respect of shortage in quantity and over than quantity penalty shall be levied at 200%

Part-69-One Pager Snapshot to the Latest Cases

-Export of Service and ratio decidendi of the decisions which were rendered during service tax regime.
-Stay of Scrutiny Proceedings as Audit U/Sec 65 completed
-Investigation Proceedings by Multiple Authorities
-Applicability of Amended provisions of Section 129 to proceedings initiated prior to 1/1/2022

S.No

Section

Case Subject

Case

Held

1

Section 2(6)
of IGST Act,
2017

Export of
Service and
ratio decidendi
of the
decisions
which were
rendered
during service
tax regime.

Bimal Jhunjhunwala v.
Assistant
Commissioner, CGST &
CX, BBD Bag I [2023]
153 taxmann.com 590
(Calcutta)

Appellant had challenged order dated 19.08.2022 by which application for refund was rejected. The order rejecting the refund stated that
from application filed, it was observed that importer had sent remittance through an agency (WISE US Inc.) located outside India, who
has remitted INR to the appellant and thus remittance was not received in foreign convertible exchange by the appellant. Therefore,
considering the definition "Export of Service" it violated condition (iv) of Section 2(6) of IGST Act, 2017. The impugned order while referring
to decisions, relied by the appellant, stated that those decisions are relating to erstwhile service tax regime and thus not applicable.
High Court held that since the issues have not been thoroughly adjudicated either by the Adjudicating Authority or by the Appellate
Authority, therefore matter was remanded back to consider all the issues in a holistic manner and take note of the ratio decidendi which
can be culled out in various decisions which have been relied by the appellant, more particularly the decisions which were
rendered during the service tax regime.

2

Section 5
and Section
6 of CGST
Act, 2017

Stay of
Scrutiny
Proceedings
as Audit
U/Sec 65
completed

Gopeshwar Iron & Steel
Works (P.) Ltd. v.
Superintendent, CGST
& CX, Range 1 [2023]
153 taxmann.com 589
(Calcutta)

Whether respondent authority can proceed further pursuant to notice issued under Section 61 of the CGST Act, 2017 particularly when
Audit under Section 65 has been completed and for the same period the DGGI has already issued summons and appellants have
submitted documents and the matter is pending before the DGGI.
High Court allowed the appeal and the notice issued under Section 61 was stayed till the disposal of the writ petition.

3

Section 5
and Section
6 of CGST
Act, 2017

Investigation
Proceedings
by Multiple
Authorities

Hanuman Enterprises
(Opc) (P.) Ltd. v.
Additional Director
General Directorate
General of GST
Intelligence [2023] 153
taxmann.com 565
(Delhi)

In the present matter, DGGI, Zonal Unit, Jaipur conducted an investigation in respect of the petitioner and it was stated by the petitioner
that the DGGI, Jaipur cannot conduct any investigation as the petitioner has already been investigated for the same period by Delhi State
Authority. It was further stated that petitioner's ITC was also blocked by the Delhi State Authority but the same has since been unblocked
on expiry of the stipulated period of one year. Delhi State Authorities who appeared before the Court stated that they have not conducted
any investigation and petitioner's ITC was blocked on account of a communication received from DGGI, Jaipur and petitioner's bank
account was blocked at the instance of DGGI, Chennai. DGGI Chennai stated that they have not investigated the petitioner but was
concerned with an entity named M/s Balaji Enterprises.
High Court held that in the aforesaid view, provisions of Section 6(2)(b) of the CGST Act are not attracted. In the present case, the
Delhi State Authority administratively concerned with the petitioner, has clarified that it has not carried out any investigation
but had issued orders regarding blocking of the account at the instance of DGGI, Chennai. DGGI, Chennai had also stated that it
has not carried out any investigation in respect of the petitioner company. The disclosed principal place of business of the petitioner was
the same as that of some other connected entities, which had investigated by DGGI, Chennai. Therefore, no advantage can be drawn by
the petitioner on that account. The petitioner had a separate tax registration. If any of the authorities found it necessary to
investigate the petitioner based on certain information, said investigation cannot be stopped or interdicted on account of
investigation conducted with respect of any other entity

4

Section 129
of CGST
Act, 2017

Applicability of
Amended
provisions of
Section 129 to
proceedings
initiated prior
to 1/1/2022

Mohin Khan v. State Of
C.G [2023] 153
taxmann.com 429
(Chhattisgarh)

In the present matter, petitioner had preferred an application for releasing of vehicle which was detained 04.01.2021, in the light of
amended provision of Section 129 of the GST Act, which came into force w.e.f. 1st January, 2022. Revenue contended that the said
amended provision are not applicable in the instant case as the, said amendment has been given prospective effect.
High Court accepted the contention that the amended provision of Section 129 of the GST Act, which has come into effect on 1st
January, 2022, cannot be made applicable in the case of the petitioner as the proceedings were initiated on 4th January 2021.
Therefore, the prayer of the petitioner for release of the vehicle was accordingly rejected

Part-52-One Pager Snapshot to the Latest Cases

-Condonation of appeal filed beyond the time period

-Recovery of the demand after expiry of the Normal period for filing of Appeal but before extended period for which condonation is allowed

-Levy of Penalty dropped for failure to extend validity of Eway Bill

-No Date, Time and Venue of personal hearing mentioned and for columns 3,4&5 of Date, Time & Venue, NA being mentioned in SCN

S.No

Section

Case Subject

Case

Held

1

Section
107

Condonation of
appeal filed
beyond the
time period

Penuel Nexus (P.) Ltd.
v. Additional
Commissioner,
Headquarters (Appeals)
[2023]152 taxmann.com
208 (Kerala)

The matter was related to cancellation of registration and the issue before the High court was about condonation of time period for filing an
appeal be filed beyond the time period prescribed under Section 107 (4) of CGST Act, 2017.
The High Court while dismissing the petition by holding it time barred held that CGST Act is a special statute and a self-contained code by
itself. It is trite, that the Limitation Act will apply only if it is extended to the special statute. It is also rudimentary that the provisions of a
fiscal statute have to be strictly construed and interpreted

2

Section
78 and
Section
107

Recovery of
the demand
after expiry of
the Normal
period for filing
of Appeal but
before
extended
period for
which
condonation is
allowed

Stallion Energy (P.) Ltd.
v. Union of India [2023]
152 taxmann.com 211
(Gujarat)

The adjudication order came to be passed on 02.03.2022 and petitioner was directed to make the payment of total amount of Rs.56,14,388/-
. Thereafter order of provisional attachment of property under Section 83 came to be passed on 16.06.2022 and out of the total amount of
Rs.56,14,388, Rs.46 lakhs came to be withdrawn by the respondents from the bank account of petitioner maintained with HDFC Bank. The
petitioner preferred an appeal on 04.07.2022 under Section 107 of the Act before the Appellate Authority and as there was delay in preferring
the said appeal and therefore petitioner had filed separate application for condonation of delay. It was also stated that as per the provisions
contained in Section 107 of the Act, the petitioner was required to pre-deposit 10% of the amount of tax before the Appellate Authority but
the respondents had already withdrew an amount of Rs.46 lakh from the account of the petitioner maintained with HDFC Bank. The
petitioner, therefore, urged that respondents be directed to refund the remaining amount i.e. Rs.42,44,664/-.
The High Court while observing that the condonation application is till pending held that the contention of the petitioner was
misconceived in view of the provisions contained in Section 73(9) read with Sections 78 and 107 of the Act and If appeal filed by
the petitioner is allowed by the Appellate Authority, it is always open for the petitioner to make such request before the Appellate
Authority that direction be issued to the respondents to refund the amount.

3

Section
129

Levy of Penalty
dropped for
failure to
extend validity
of Eway Bill

Pushpa Devi Jain v.
Assistant
Commissioner of
Revenue [2023] 152
taxmann.com 239
(Calcutta)

The goods were detained as e-way bill had expired at 11:59 hours on 22nd April, 2022 and it had to be revalidated by 8 a.m. on 23rd April,
2022. However, said date was a Saturday and the vehicle was intercepted at 8.52 a.m. There was no other allegation against the petitioner.
The High Court considered the peculiar facts of the case and observed that there was no lack of bona fide on the part of the appellant to
state that there was wilful misconduct committed by the appellant while transporting the goods. There was every possibility that even if
an application was made for extension of the e-way bill within the time permitted, 23rd April, 2022 being a Saturday, the e-way bill,
in all probabilities, would not have been revalidated within the eight hours period. Therefore, the appeal was allowed and the order
was set aside by holding that considering the facts and circumstances of the case, the authority could not have imposed penalty on the
appellant

4

Section
73

No Date, Time
and Venue of
personal
hearing
mentioned and
for columns
3,4&5 of Date,
Time & Venue,
NA being
mentio

Agarwal Wheels (P.)
Ltd.
v. State of Madhya
Pradesh [2023] 152
taxmann.com 243
(Madhya Pradesh)

SCN was issued making mention about personal hearing to the effect that "you may appear before the undersigned for personal hearing
either in person or through authorized representative for representing your case on the date, time and venue, if mentioned in table below",
but no date, time and venue for personal hearing was shown in the notice.
The High Court observed that SCN issued itself shows that before passing final order dated 24.08.2022, the intention of the respondents
was to give personal hearing to the petitioner, but in the table given, captioned as "Details of personal hearing etc.", no Date,
Time and Venue of personal hearing was shown and in front of columns 3,4&5 of Date, Time and Venue, NA was mentioned,
which is sufficient to infer that no personal hearing was given to the petitioner before passing the impugned order dated
24.08.2022. The impugned order was held to be non-sustainable and was quashed and the matter was remitted back for passing order
afresh.
Case Referred- Bharat Mint & Allied Chemicals v. Commissioner of Commercial Tax, 2022 (59) G.S.T.L. 394 (All.)

Part-50-One Pager Snapshot to the Latest Cases

-Looking to the peculiar circumstances penalty was not leviable for Expired Eway Bill and High Court recognized that Rule 138(10) when provides for extension of eway bill also mandates to look at the conduct of the party for levy of penalty

-Non-Constitution of Tribunal

-High Court Mandates levy of penalty of Rs 50000 for generation of new Eway Bill without extending the validity of previous Eway Bill

S.No

Section

Case Subject

Case

Held

1

Section
129

Looking to the
peculiar
circumstances
penalty was
not leviable for
Expired Eway
Bill and High
Court
recognized
that Rule
138(10) when
provides for
extension of
eway bill also
mandates to
look at the
conduct of the
party for levy
of penalty

Progressive
Metals (P.) Ltd.
v. Deputy
Commissioner,
State Tax
[2023] 152
taxmann.com
158 (Calcutta)

Vehicle along with the goods entered the Durgapur industrial belt within the validity of the e-way bill. The vehicle was intercepted on 9th May, 2022
at 9:35 AM at Durgapur and the vehicle was detained along with the goods on the ground that the e-way bill had expired on 8th May, 2022 at 11:59
AM. The explanation given by the appellant was that it was a Sunday and the consignee had given instructions to unload the goods at a different
location within the same area and in this regard the appellant had produced e-mail sent by the consignee stating that they had given instructions
subsequently to unload the goods at a different location within the area to which the goods were sent as per the e-way bill.
The High Court observed that there was no intention on the part of the appellant to evade payment of tax. In any event, in terms of rule 138 of the
WBGST Rules, if an e-way bill had expired, the transporter had 08 hours time to seek for extension of the time stipulated in the e-way bill. If that
allowance is given, at the time when the vehicle along with the goods were intercepted, it was delayed by about 01 hour and 35 minutes. The particular
details given in e-way bill will show that area Durgapur has also been mentioned. It is not disputed that vehicle was within the Durgapur industrial belt
though not at Panagarh. Thus, considering the peculiar facts and circumstances of the case and in the absence of any material produced
by the revenue to doubt the bona fides of the appellant, High Court held that penalty should not have been imposed in this case.
The revenue relied upon the judgement of Hon'ble Supreme Court in Chairman, SEBI v. Shriram Mutual Fund & Anr. reported at [2006] 5 SCC 361
for the proposition that the intention of the authority committing such violation becomes immaterial when there is a contravention of the statutory
obligation.
The High Court observed that third proviso to Rule 138(10) states that the validity of e-way bill may be extended within 8 hours from the time of its
expiry. Thus, the rules give certain latitude and therefore, the conduct of the transporter was required to be examined bearing in mind that the rule
itself provides for extension of the validity period of the e-way bill and the transporter has been given a latitude of 8 hours to seek for such extension.
If that benefit was to be granted to the appellant, then the delay would be about 1 hour and 35 minutes. There is no other allegation against the
appellant. Therefore, considering the peculiar facts and circumstances of the case, the High Court held that this was not a case, where
penalty that too 200% penalty should have been imposed.

2

Section
112

NonConstitution of
Tribunal

Essar Steel
Suppliers v.
Union of India
[2023] 152
taxmann.com
128 (Bombay)

n the instant case, petition under Article 226 of the Constitution of India was filed to challenge an Order-in-Appeal dated 21 April, 2021 passed by
the Commissioner of Central Taxes, Central Excise & Service Tax (Appeals), Raigarh. Against the said order, an appeal was provided under Section
112 of the Central Goods and Service Tax Act, 2017 to the Appellate Tribunal. However, till today, the Tribunal has not been set up.
The High Court relying upon its Judgement in Rochem India Pvt. Ltd. v. The Union of India & Ors.) dated 8 February 2023 held that the
period of filing the Appeal will stand extended as indicated in Clause 4.2 of the Circular dated 18 March 2020 and impugned order will not
be given effect until two weeks after the period prescribed for filing an appeal as under Clause 4.2 of Circular dated 18 March 2020 is over

3

Section
129

High Court
Mandates levy
of penalty of
Rs 50000 for
generation of
new Eway Bill
without
extending the
validity of
previous
Eway Bill

Bitumix India
LLP v. Deputy
Commissioner
of Revenue,
State Tax.
[2023] 152
taxmann.com
122 (Calcutta)

The goods which were being transported by the appellants to Assam were covered by e-Way Bill which was valid upto 18th March, 2022. On account
of the breakdown of the vehicle the goods did not move outside the territory of the State of West Bengal and was stationed at Dankuni on 18.03.2022.
The consignee in the meantime had sold the goods which were in transit to another purchaser in Assam and the goods were transported by the same
vehicle after generating a new e-Way Bill on 22.03.2022. The vehicle was detained on 25.03.2022 and order of penalty has been passed on the
ground of first e-Way Bill on 18.03.2022 had not been renewed/extended by the appellants.
The High Court observed that it is not in dispute on the date and time and the goods were intercepted that was on 25.03.2022 the appellants had a
valid e-Way Bill. The only mistake committed by the appellants was of not renewing the e-Way Bill which expired on 18.03.2022. This in opinion of
the High Court should not have been done since the goods were sold in transit. Therefore, violation had been committed by the appellants but
the violation was not as grave enough to call for imposition of penalty at the rate of 200% as on the date when the vehicle was intercepted
the goods were covered by a valid e- Way Bill which satisfies the requirement under Section 129 of the Act. However, the High Court further
held that that the mistake committed by the appellants in not renewing the earlier e-Way Bill which expired on 18.03.2022 the appellants should be
put on terms and thus the order passed was modified with the direction to the appellants to pay a penalty of Rs.50,000/- which will include
both CGST and WBGST instead of 200% penalty as imposed by the authorities

Snapshot-42-Snapshot of Latest GST Cases

-Inter-play between Section 129 and 130 in Question
-Status of Recovery of demand on account of non-constitution of Tribunal
-GST officers have no power to seize any cash in exercise of its powers under Section 67(2) of the GST Act
-Opportunity of being heard to be given considering the reason for seeking adjournment was reasonable

S.No

Section

Case Subject

Case

Held

1

Section
129 and
Section
130

Inter-play between
Section 129 and 130 in
Question

Aahana Sales (P.)
Ltd. v. Union of India
[2023] 151
taxmann.com 230
(Gujarat)

Petitioner contended that when goods were in transit, the authorities intercepted the goods and confiscated them. In other words,
authorities sought to derive their powers for taking possession of the goods of the petitioner which were in transit under Section 129
of the Act. It was submitted that the said Section begins with non obstante clause and it is a provision independent of Section 130. In
that context, it was submitted that exercise of powers under Section 129 and thereafter switching over to Section 130 and passing
order thereunder without availing the petitioner the benefits of release of the goods under Section 129, could be said to be without
jurisdiction. Special Civil Application No.8353 of 2022 and other matters have been entertained by this court involving the same point
and interim relief of release of the goods and conveyance has also been granted on condition.
The High court directed that upon compliance of the required conditions stated in the order, goods and vehicle both shall be released
by the authorities and the petition be listed with Special Civil Application No.8353 of 2022

2

Section
112

Status of Recovery of
demand on account of
non-constitution of
Tribunal.

SAJ Food Products
(P.) Ltd. v. State of
Bihar [2023] 151
taxmann.com 229
(Patna)

The High Court held that subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in
dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section
107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the
B.G.S.T. Act, for he cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The
recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Case Referred- Angel Engicon Private Limited v. the State of Bihar & Anr. passed in C.W.J.C No. 1920 of 2023

3

Section
67

GST officers have no
power to seize any cash
in exercise of its powers
under Section 67(2) of
the GST Act

Arvind Goyal CA v.
Union of India [2023]
151 taxmann.com
228 (Delhi)

The petitioner had contended that GST officers had no power to seize any cash in exercise of its powers under Section 67(2) of the
GST Act. The department contended that that the officers had merely "resumed" cash as is noted in the panchnama and therefore,
the same cannot be considered as seizure. The High Court observed that Prima facie, a plain reading of Section 67(2) of the GST
Act indicates that the seizure is limited to goods liable for confiscation or any documents, books or things, which may be "useful for
or relevant to any proceedings under this Act". Clearly, cash does not fall within the definition of goods. And, prima facie, it is difficult
to accept that cash could be termed as a 'thing' useful or relevant for proceedings under the GST Act. The second proviso to Section
67(2) of the GST Act also provides that the books or things so seized would be retained by the officer only so long as may be
necessary "for their examination and for any inquiry or proceedings under the Act." However, Court thereafter noted that there was
no occasion for the Court to examine the aforesaid question as it was the respondents' stand that the cash was not seized.
It was contended by the respondent that seizure memo was not prepared as the officers, who had conducted the search operation,
had, in fact, not seized any cash. It was observed by the High Court that there was no provision in the GST Act that could support an
action of forcibly taking over possession of currency from the premises of any person, without effecting the same. The powers of
search and seizure are draconian powers and must be exercised strictly in terms of the statute and only if the necessary conditions
are satisfied. Thus, it was held that the action of taking away currency was illegal and without any authority of law respondents were
directed to forthwith return the balance amount along with the interest accrued thereon to the petitioners and the bank guarantee
furnished by petitioner for release of currency was directed to be released forthwith

4

Section
107

Opportunity of being
heard to be given
considering the reason
for seeking adjournment
was reasonable

Swaraj Equipment
(P.) Ltd. v.
Commissioner
(Appeals II) [2023]
151 taxmann.com
227 (Madras)

The only grievance put forth was that the petitioner was not heard prior to passing of the impugned order. The officer records that
though personal hearing was fixed on 06.01.2023 and re-fixed on 08.02.2023, on both occasions, only adjournment was sought on
the ground that additional information was to be collected. However, the assessee pointed out that marriage reception of his daughter
was on 04.02.2023, on account of which, he was unable to collect the requisite particulars. The High Court was of the considered
view that the aforesaid reason constitutes sufficient cause and that the officer ought to have taken note of the same and re-schedule
the date of hearing to accommodate the request as aforesaid and thus the impugned order was set aside, appeal stood restored

Snapshot-36-Snapshot of Latest GST Cases

-Reasonable opportunity of being heard be given and decision to extend time be exercised with sound reasons
-Cononation beyond Limitation Period not allowed
-No Levy of Penalty due to Expiry of way Bill
-Grant of Anticipatory Bail

S.No

Section

Case Subject

Case

Held

1

Section
73 and
section
75

Reasonable
opportunity of
being heard be
given and
decision to
extend time be
exercised with
sound reasons

Exide
Industries Ltd.
v. Deputy
Commissioner
(CT) [2023]
151
taxmann.com
110 (Madras)

The High Court observed that reasonable opportunity ought to be given to a person to show cause and depending upon the facts of each case,
even further extension of time can be granted by the Assessing / Adjudicating Officer. In any event, the decision to refuse or extend time ought to
be exercised with sound reasons and not in an arbitrary or capricious manner.
In view of the above, the court found that impugned orders did not discuss the reasons for extension of time at all, leave alone giving its finding
either granting or refusing the adjournment. In such circumstances, it was clear that there was a clear violation of the Circular No. 12/2022 Dt 26th
September 2022 (TNGST) and therefore it was held that petitioner be afforded a fair opportunity to submit its explanation in respect of three
pending queries within a reasonable time and thereupon, the respondent may pass fresh orders considering the entire explanation submitted by
the petitioner, including the earlier explanations submitted by it., The impugned orders were set aside.

2

Section
107

Condonation
beyond
limitation period
not allowed

[2023] 151
taxmann.com
109 (Patna)
Badri Prasad
Yadav v. State
of Bihar

The remedy of writ is an absolutely discretionary remedy. The High Court, hence, can always refuse the exercise of discretion if there is an
adequate and effective remedy elsewhere. The High Court can exercise the power only if it comes to the conclusion that there has been a breach
of principles of natural justice or due procedure required for the decision has not been adopted. The High Court would also interfere if it comes to
a conclusion that there is infringement of fundamental rights or where there is failure of principles of natural justice or where the orders and
proceeding are wholly without jurisdiction or when the vires of an Act is challenged.
It was further observed that when there is a specific period for delay condonation provided, there cannot be any extension of the said period by
the Appellate Authority or by this Court under Article 226 of the Constitution. The petitioner by his own failure had not availed the appellate remedy
and in that circumstance, there can be no invocation of the extraordinary jurisdiction under Article 226 of the Constitution of India. The High Court
did not find that there was a jurisdictional error, violation of principles of natural justice or abuse of process of Court averred or argued by the
petitioner in the above writ petition. The petitioner sought to challenge the demand on the ground that the ITC claimed by the petitioner was proper;
which was merely determination of the tax payable on the basis of the various claims validly arising from the statute and computation; which cannot
be agitated in a petition under Article 226 of the Constitution of India. The gross delay stands against the petitioner and delay was not condoned.
Cases Referred- State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr.; [2005] 6 SCC 499

3

Section
129

No Levy of
Penalty due to
Expiry of way
Bill provided
intent to evade
absent

Ramji Jaiswal
v. State Tax
Officer,
Bureau of
Investigation
[2023] 151
taxmann.com
165 (Calcutta)

n the instant petition, the petitioner challenged the order of adjudicating authority imposing the penalty for transporting the vehicle in question
after expiry of the e-way bill which expired on 2nd August, 21 at 11.59 p.m. and vehicle in question was intercepted at 6.45 p.m. on 3rd August,
2021. There was a time gap between the expiry and interception of the vehicle in question of about 18 hrs., which was less than a day and
petitioners submitted there was no intention of evasion on part of petitioners and there was a genuine problem of break down of vehicle in question.
The High Court decided the matter in favour of the petitioner in view of the facts which appeared from record and considering the orders of the
Calcutta High Court by setting aside the impugned order and as a consequence, petitioners were held to be entitled for refund of the penalty.
Cases Referred- Ashok Kumar Sureka v. Assistant Commissioner, State Tax, Durgapur Range

4

Section
69 and
Section
132

Grant of
Anticipatory Bail

Kishan Murari
Gupta
V State of U.P
[2023] 151
taxmann.com
164
(Allahabad)

In the instant case, it was submitted by the petitioner that since seller firm as per allegation in the FIR had been found bogus, therefore, their firm
being the purchaser firm, proceedings under section 74 of U.P. G.S.T. Act were going on and they have participated in those proceedings and
against the order of the assessing authority, appeal had been filed by depositing 10% of the disputed tax amount. It was submitted that the dispute
was purely civil in nature. The petitioner had no criminal antecedent.
The High Court observed that considering the above aspects of the matter, perusal of the record, the fact that proceedings under section 74 of the
U.P. G.S.T. Act were going on, as also the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1 and
without entering into the merit of the case, it would be appropriate to grant protection to the applicants under Section 438 Cr.P.C