Page 70 - GSTL_23rd April 2020_Vol 35_Part 4

396 GST LAW TIMES [ Vol. 35
8. Learned Counsel for the CGST, on the other hand, has opposed the
prayer, and has drawn our attention towards the letter dated 5-4-2019, as con-
tained in Annexure-6 to the writ application, from which it is shown to us that
GSTR-1 was submitted by the petitioner rightly, showing the supply to be the
inter-State supply and also rightly showing the Integrated tax liability thereon at
Rs. 74,51,127/-, the Central tax liability as Rs. 2,68,470/-, as also the State tax lia-
bility of the same amount, i.e., Rs. 2,68,470/-. It is submitted by the Learned
Counsel for the CGST that filing of the form GSTR-1 clearly indicated that the
petitioner was fully aware of the nature of the supply that it was inter-State sup-
ply made by the petitioner, and accordingly, the GSTR-3B was filed by the peti-
tioner intentionally showing their liability under the IGST to be only
Rs. 32,52,485/- and also wrongly showing CGST liability to be Rs. 44,67,114/- for
the reasons best known to the petitioner.
9. Learned Counsel for the CGST has further submitted that there is no
provision for transfer/adjustment/utilization of paid tax from one head to the
other head and accordingly, the submission of the petitioner could not be acced-
ed to. Learned Counsel has also drawn our attention towards Article 269A of the
Constitution of India, to show that though it is the Central Government which
realises the tax under the IGST head, but it also includes the proportion of the tax
of the State to which it may be applicable, and accordingly, it is submitted by
Learned Counsel that by the extra payment of CGST, though the tax was paid in
the coffer of the Central Government, but the concerned State was denied of its
proportion in the tax deposited by the petitioner, and accordingly, the liability of
the interest shall be made out.
10. Learned Counsel for the CGST has also drawn our attention to-
wards Section 49(3) of the CGST Act, to show that the amount available in the
‘electronic cash ledger’ may be used for making any payment towards tax or oth-
er dues under the provisions of this Act, i.e., only under the CGST head, and
there is no such provision as is available for ‘electronic credit ledger’ under Sec-
tion 49(4) and (5), for using that ledger for payment of the tax either in the IGST
head or CGST head or even in the State head. It is submitted by Learned Counsel
that since in the present case, the payment was made through ‘electronic cash
ledger’ and not through ‘electronic credit ledger’, there cannot be any adjustment
of the tax paid by the petitioner, from CGST to IGST head.
11. Learned Counsel for the CGST further submits that Section 77 of the
CGST Act, or Section 19 of the IGST Act, shall not be applicable in the case of the
petitioner, due to the wordings of these provisions, which show the bona fides of
the registered person who pays the tax, and the cases where the tax is paid under
the wrong head deliberately, as in the case of the petitioner-Company, which
filed the GSTR-1 correctly, and GSTR-3B changing the stand deliberately, these
provisions shall not apply.
12. Learned Counsel for the CGST also submitted that even Rule 92 of
the CGST Rules, is not applicable in case of the petitioner, inasmuch as, these
Rules for adjustment of the amount is applicable against the outstanding de-
mand under the Act, or any existing law. It is submitted that this Rule cannot be
made applicable for the adjustment of the liability of tax under the IGST Act, in-
asmuch as, the said law was not existing on the date of coming into force of the
CGST Rules, or CGST Act, as both these Acts have been enacted on the same day.
Learned Counsel accordingly, concluded that there can be no case of adjustment
of the CGST amount deposited by the petitioner, to IGST head, and in view of
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