Wrong availment of ITC: Amount paid by petitioner during an investigation to be treated as paid Under Protest.

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Wrong availment of ITC: Amount paid by petitioner during an investigation to be treated as paid Under Protest.

 

Mad HC in the case of M/s .Aditya Energy Holdings vs DGGI WP 9654/2021 has made few remarkable observation as under:

1.     In case of issue of wrong availment of ITC, amount paid by petitioner during an investigation to be treated as paid Under Protest.

2.     Such amount paid under protest is subject to the final appropriation in the proceedings to be initiated under Sections 73/74 of the CGST Act.

3.     Department is directed to return the photocopies of the seized documents.

4.     In case of non-issuance of SCN by dept post HC ruling, the amount collected by dept to be refunded as per GST law

5.     The court observed as under in Para 7:

“7.The respondent is also directed to return the photo copies of the seized documents to the petitioner, if they have not been already returned to the petitioner. In any event, in the show cause notice under Sections 73 / 74 of CGST Act, 2017, the respondent shall clearly spell out the reasons and give details of the Relied Upon Documents based on which the demand is proposed to be made against the petitioner and why the amount already paid by the petitioner should not be appropriated. The entire exercise may be completed by the respondent preferrably within a period of twelve months from the date of receipt of a copy of this order, i.e., show cause notice should be issued within six months from the date of receipt of a copy of this order together with all Relied Upon Documents. The respondent shall also return the originals of all the documents which are not required for the investigation. The petitioner shall cooperate with the respondent and file a reply within a period of thirty days from the date of issuance of show cause notice. The respondent shall pass appropriate orders within a period of twelve months as stipulated above. In case, there is no case made out in the show cause proceedings, the respondent shall refund the amount to the petitioner, in accordance with law.”

 

 

 

 

 

The copy of the order is as under:

 

Attachments area

 

Madras HC

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