Delhi High Court
M/S Jain Cement Udyog (Through ... vs Central Board Of Indirect Taxes And ... on 4 April, 2024
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 04.04.2024
+ W.P.(C) 3373/2024 & CM. APPLS. 13870/2024
M/S JAIN CEMENT UDYOG (THROUGH PROPRIETOR SH.
SANJAY JAIN) ..... Petitioner
Versus
CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS &
ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. R.P. Singh, Advocate.
For the Respondents: Mr. Anurag Ojha, Senior Standing Counsel with
Mr. Subham Kumar, Advocate for R-1.
Mr. Rajeev Aggarwal, Additional Standing Counsel
with Mr. Prateek Badhwar, Ms. Shaguftha H.
Badhwar and Ms. Samridh Vats, Advocates.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 04.12.2023, whereby the
impugned Show Cause Notice dated 25.09.2023, proposing a demand
of Rs.7,56,66,476.00 against the Petitioner has been disposed of and a
demand including penalty has been raised against the Petitioner. The
order has been passed under Section 73 of the Central Goods and
Services Tax Act, 2017 (hereinafter referred to as the Act).
2. Issue notice. Notice is accepted by learned counsel for the
respondents. With the consent of parties, petition is taken up for final
disposal.
3. Perusal of the Show Cause Notice shows that the Department
has given separate headings i.e., under declaration of output tax;
excess claim of Input Tax Credit ["ITC"]; and ITC claimed from
cancelled dealers, return defaulters and tax non payers.
4. The impugned order, however, after recording the narration,
records that a demand as ex-parte is created. It merely states that
"And whereas, it is noticed that the Taxpayer neither filed
reply/explanation within stipulated period nor appeared for Personal
Hearing before Proper Officer on the given date and time, Further,
another opportunity to submit reply and observing principles of
natural justice, opportunity for Personal Hearing, as per provision of
Section 75(4) DGST Act, was also provided to the taxpayer by issuing
"REMINDER" through the GST portal. Now, since no reply I
explanation has been received from the taxpayer despite sufficient and
repeated opportunities, which indicate that the taxpayer has nothing
to say in the matter. ***** In view of the aforesaid circumstances, the
undersigned is left with no other option left but to create demand as
ex-parte, in accordance with the provisions of CGST/DGST Act &
Rules, 2017." The Proper Officer has opined that despite providing
another opportunity, neither an online reply has been filed nor has the
petitioner appeared in person or through an authorized representative.
5. Learned counsel for petitioner submits that the GST registration
of the petitioner had been cancelled retrospectively with effect from
26.07.2017.
6. It is an admitted case of the Department that in case registration
is cancelled retrospectively, the taxpayer cannot access the portal.
Accordingly, there is merit in the contention of the petitioner that he
was not served with the impugned Show Cause Notice and the
impugned order which was issued after the registration was cancelled.
7. In view of the above, we are of the view that the impugned
order which had been passed solely on account that petitioner had not
filed a reply cannot be sustained. The matter is liable to be remitted to
the Proper Officer for re-adjudication. Accordingly, the impugned
order dated 04.12.2023 is set aside. The matter is remitted to the
Proper Officer for re-adjudication.
8. Petitioner shall file reply to the Show Cause Notice within 30
days. Thereafter, the Proper Officer shall re-adjudicate the show cause
notice after giving an opportunity of personal hearing and shall pass a
fresh speaking order in accordance with law within the period
prescribed under Section 75 (3) of the Act.
9. Learned counsel further submits that another Show Cause
Notice for the same tax period dated 05.04.2023 has been issued by
the Directorate General of Goods and Services Intelligence,
Ghaziabad Regional Unit. This order would be without prejudice to
the proceedings already initiated by the Directorate General of Goods
and Services Intelligence, Ghaziabad, Regional Unit and defence of
the petitioner thereto.
10. It is clarified that this Court has neither considered nor
commented upon the merits of the contentions of either party. All
rights and contentions of parties are reserved.
11. The challenge to Notification No. 9 of 2023 with regard to the
initial extension of time is left open.
12. Petition is disposed of in the above terms.
SANJEEV SACHDEVA, J
RAVINDER DUDEJA, J
APRIL 04, 2024/ NA
