# Principal Commissioner Cgst & Central Excise Lucknow & Anr v. M/s Bushrah Export

- **Citation:** (2022) 9 ILRA 1729
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-05
- **Case number:** Writ C No. 29052 of 2021
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/principal-commissioner-cgst-central-excise-lucknow-anr-v-m-s-bushrah-export-48978
- **Pages:** 6

## Headnote

A. Civil Law - Constitution of India, 1950
&
Central
Goods
and
Services
Tax
Act,2017 -Challenge to appellate orderIn the present case, the show cause
notice as issued to the petitioner had
made three precise allegations that the
supplier of the goods to the respondents
had
supplied
the
goods
without
generation of the e-way bills which was
contrary to the E-Way Bill Rules and thus,
the claim of the respondents was liable to
be rejected- That being the nature of the
allegations levelled in the show cause
notice, the submission that the goods
sent from Surat to Kanpur for export did
not carry e-way bills as admitted by the
respondents in their memo of appeal,
cannot be accepted as it is well settled
that the allegations as levelled in the
show cause notice should be clear and
specific and the findings cannot go
beyond the allegations as levelled in the
show cause notice- It is well settled that
the show cause notice is issued to make
the noticee understand the allegation
and facts as are levelled in the show
cause notice and it is aimed that putting
the noticee to whom the show cause
notice is issued on guard, In the present
case, no allegations were levelled in the
show cause notice to the effect that the
respondents had transferred the finished
goods for export from Surat to Kanpur
without e-way bill as such the arguments
of petitioner on that count are without
any foundation and thus liable to be
rejected. the specific finding by the
Commissioner (Appeals) that the goods
were
received
by
the
respondents
through e-way bills within the same city,
there was no requirement of generation
of e-way bills as provided under the
notification dated 19.09.2018, the said
finding has not been shown to be
perverse or in any way arbitrary or
illegal.(Para 1 to 17)
B. In the present case, the respondents
moved an application seeking refund of
the CGST through their application dated
20.02.2020
claiming
an
amount
of
Rs.1,84,17,252/- on the tax paid inputs of
the Goods, which was ultimately exported
by the respondents. It is claimed that
after verifying the claims, prima-facie an
acknowledgment
was
issued
to
the
respondents and a provisional order dated
04.03.2020
allowing
partial
refund
amounting
to
Rs.1,65,75,526.80
was
granted on a provisional basis out of the
total refund claimed. When the claims of
the
respondent
were
subjected
to
scrutiny, the department was of the view
that the provisional refund granted to the
respondents was erroneous refund and, as
such,
a
show
cause
notice
dated
07.04.2020 was issued to the respondents
calling upon the respondents to show
cause as to why the application for grant
of refund may not be rejected. (Para 3)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

9 All. Principal Commissioner Cgst & Central Excise Lucknow & Anr. Vs. M/s Bushrah Export
 House Two Star Lko & Anr.
1729
necessary; or to prevent any one acting as
Kazi.-- Nothing herein contained and no
appointment made hereunder, shall be
deemed--

(a) to confer any judicial or
administrative powers on any Kazi or Naib
Kazi appointed hereunder; or

(b) to render the presence of a
Kazi or Naib Kazi necessary at the
celebration of any marriage or the
performance of any rite or ceremony; or

(c)
to
prevent
any
person
discharging any of the functions of a Kazi."

9. A close examination of the provisions
of section 2 of the Act would indicate that for
appointment of a person as Kazi there are two
stages. The first stage is that it must appear to
the State Government that a considerable
number of the Mohammedans residing in any
local area desire that one or more Kazis should
be appointed for such local area. Once, the first
stage is crossed, the State gets discretion to
appoint, if it thinks fit, one or more fit persons,
after
consultation
with
the
principal
Mohammedan residents of such local area.
Section 4 of the Act by declaring that no
appointment made under the Act could prevent
a person from discharging any of the functions
of a Kazi clarifies that appointment of a Kazi
does not confer any exclusive status or powers.

10. A Division Bench of the Madras
High Court in Katil Sheikh Ummar Saheb
V. Khazi Budan Khan Saheb, AIR 1915
Madras 28 upon examination of the
provisions of Sections 2 and 4 of the Act held
that the object of the Kazis Act was merely to
appoint a person whose duty it would be to
render certain services to such Mohammedans
as may choose to resort to him for certain
purposes, and does not confer on him any
exclusive right to perform the functions which
his office requires him to discharge.

11. Having examined the scheme of the
Act and the decision noticed above, we are of
the view that the appointment of a person as
Kazi does not confer any exclusive right upon
that person. It is therefore a mere title,
conferment of which rests in the discretion of
the State, subject to the provisions of the Act.
No one therefore, gets a right to claim
appointment as Kazi under the Act. Thus,
keeping in mind that denial of appointment
does not affect any right of the petitioner, the
decision of the State Government rejecting
petitioner's claim for appointment as Kazi does
not give a cause of action to the petitioner to
maintain a writ petition. Had it been a case of
taking away the conferred title of Kazi from
the petitioner, situation would have been
different and he would have had a right to
question the same on grounds permissible for
judicial review. But here the petitioner was
never appointed by the State Government
therefore a question of his removal does not
arise.

12. For the reasons aforesaid, we do not
find a good reason to entertain this petition.
The petition is dismissed.
----------
(2022) 9 ILRA 1729
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 05.09.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 29052 of 2021

Principal Commissioner Cgst & Central
Excise Lucknow & Anr. ...Petitioners
Versus
M/S Bushrah Export House Two Star Lko
& Anr. ...Respondents
1730 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Kuldeepak Nag K.D. Nag

Counsel for the Respondents:
Vibhanshu Srivastava

A. Civil Law - Constitution of India, 1950
&
Central
Goods
and
Services
Tax
Act,2017 -Challenge to appellate orderIn the present case, the show cause
notice as issued to the petitioner had
made three precise allegations that the
supplier of the goods to the respondents
had
supplied
the
goods
without
generation of the e-way bills which was
contrary to the E-Way Bill Rules and thus,
the claim of the respondents was liable to
be rejected- That being the nature of the
allegations levelled in the show cause
notice, the submission that the goods
sent from Surat to Kanpur for export did
not carry e-way bills as admitted by the
respondents in their memo of appeal,
cannot be accepted as it is well settled
that the allegations as levelled in the
show cause notice should be clear and
specific and the findings cannot go
beyond the allegations as levelled in the
show cause notice- It is well settled that
the show cause notice is issued to make
the noticee understand the allegation
and facts as are levelled in the show
cause notice and it is aimed that putting
the noticee to whom the show cause
notice is issued on guard, In the present
case, no allegations were levelled in the
show cause notice to the effect that the
respondents had transferred the finished
goods for export from Surat to Kanpur
without e-way bill as such the arguments
of petitioner on that count are without
any foundation and thus liable to be
rejected. the specific finding by the
Commissioner (Appeals) that the goods
were
received
by
the
respondents
through e-way bills within the same city,
there was no requirement of generation
of e-way bills as provided under the
notification dated 19.09.2018, the said
finding has not been shown to be
perverse or in any way arbitrary or
illegal.(Para 1 to 17)
B. In the present case, the respondents
moved an application seeking refund of
the CGST through their application dated
20.02.2020
claiming
an
amount
of
Rs.1,84,17,252/- on the tax paid inputs of
the Goods, which was ultimately exported
by the respondents. It is claimed that
after verifying the claims, prima-facie an
acknowledgment
was
issued
to
the
respondents and a provisional order dated
04.03.2020
allowing
partial
refund
amounting
to
Rs.1,65,75,526.80
was
granted on a provisional basis out of the
total refund claimed. When the claims of
the
respondent
were
subjected
to
scrutiny, the department was of the view
that the provisional refund granted to the
respondents was erroneous refund and, as
such,
a
show
cause
notice
dated
07.04.2020 was issued to the respondents
calling upon the respondents to show
cause as to why the application for grant
of refund may not be rejected. (Para 3)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Oryx Fisheries Pvt Ld Vs U.O.I. & ors. (2010)
13 SCC 427

2. Siemens Public Commn. Networks Pvt Ld &
Anr Vs UOI & ors. (2008) 16 SCC 215

3. Gorkha Security Services Vs Govt of NCT
(2014) 9 SCC 105

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard the counsel for the petitioner
and Sri Jayant Kumar assisted by Sri
Vibhanshu Srivastava, the counsel for the
respondents.

2. The present petition has been filed
challenging the appellate order dated
13.08.2021 passed by the Additional
Commissioner (Appeals), Customs, GST
and Central Excise whereby the Appeal
No.31-GST/2020 has been allowed. The
9 All. Principal Commissioner Cgst & Central Excise Lucknow & Anr. Vs. M/s Bushrah Export
 House Two Star Lko & Anr.
1731
said appeal is stated to have been preferred
by the respondents against the Order-inOriginal dated 24.04.2020 passed by the
Deputy Commissioner, Central Excise and
Service Tax, Division-I, Lucknow whereby
the claim of the respondents was rejected.

3. The facts, in brief, are that the
respondents moved an application seeking
refund
of
the
CGST
through
their
application dated 20.02.2020 claiming an
amount of Rs.1,84,17,252/- on the tax paid
inputs of the Goods, which was ultimately
exported by the respondents. It is claimed
that after verifying the claims, prima-facie
an acknowledgment was issued to the
respondents and a provisional order dated
04.03.2020
allowing
partial
refund
amounting
to
Rs.1,65,75,526.80
was
granted on a provisional basis out of the
total refund claimed. When the claims of
the respondent were subjected to scrutiny,
the department was of the view that the
provisional
refund
granted
to
the
respondents was erroneous refund and, as
such, a show cause notice dated 07.04.2020
was issued to the respondents calling upon
the respondents to show cause as to why
the application for grant of refund may not
be rejected and further why the recovery of
the sanctioned amount should not be
initiated against the respondents and why
the recovery of Input Tax Credit of the
remaining amount should not be initiated
along with the interest thereupon. The show
cause notice is contained in Annexure no.2
to the writ petition.

4. From perusal of the show cause
notice, it is clear that the allegations were
that the respondents had claimed the Input
Tax Credit in the form of IGST against the
supply received from three Tax Payers
named therein. It was further alleged that
one of the supplier namely M/s Risuddeen
Kamruddin Shekh had issued 132 invoices
totaling to Rs.10,02,08,500/- in the month
of January 2019, similarly one supplier
namely M/s Sagar Rajendra Sonvane had
issued
84
invoices
totaling
to
Rs.6,38,07,492/- in the month of March
2019 and similarly M/s Ahmed Tax had
issued 10 invoices in the month of April
2019 totaling to Rs.9,70,666/-, 18 invoices
in May 2019 totaling to Rs.17,81,692/- and
three invoices in the month of June 2019
totaling to Rs.3,07,592/-. It was further
alleged that as per the E-way Bill Rules
contained in Chapter XVI of the CGST
Rules 2017, the information was required
to be furnished prior to the commencement
of the movement of the goods and
generation of e-way bill by the registered
person, which has not been done. This fact
was revealed to the department on the
scrutinizing of GSTR-2A return filed by
the respondents. It was further alleged that
all theses three suppliers named above had
done huge volume of business in a very
short span of time and subsequently their
registration was canceled.

5. The respondents were called upon
to show cause and to produce the invoices
raised by the said suppliers / taxpayers and
e-way bills generated in the process so as to
ascertain if the goods were indeed received
by the respondents and the Input Tax Credit
has been claimed in accordance with the
Section 16(2) of the CGST Act 2017. It has
been alleged that despite asking for the
same, the respondents failed to produce the
same and thus, they were asked to show
cause as to why the action as prescribed in
the show cause notice may not be taken. It
is claimed that the respondents did not give
the reply which led to the passing of the
order dated 24.04.2020 (Annxure no.3). In
the said order, it has been recorded that the
taxpayer did not respond against the
1732 INDIAN LAW REPORTS ALLAHABAD SERIES
charges raised in the show cause notice and
neither did the taxpayer appear on the
personal hearing date and thus agreeing
with the allegations levelled in the show
cause notice, a view was formed by the
Deputy Commissioner that the suppliers to
the respondents had actually not supplied
the goods in the absence of their being any
e-way bill generated in favour of the
respondents and thus the following order
came to be passed :

"(i). I reject the remaining 10% of
the Refund claim amounting to Rs.
18,41,725/-.

(ii). I confirm the recovery of
Input Tax Credit of the remaining refund
amount i.e. Rs. 18,41,725/- under Section
74 read with Section 16 of the CGST Act,
2017 read with the IGST Act, 2017.

(iii). I confirm that the refund to
the taxpayer has erroneously been made
and accordingly, the already sanctioned
amount to the tune of Rs. 61,18,640/- may
be recovered under Section 74 of the
CGST Act, 2017, read with the IGST Act,
2017.

(iv). I confirm the interest on the
above points (ii) and (iii) under Section 50
read with Section 54 of the CGST Act,
2017, read with the IGST Act, 2017.

(v).
I
impose
the
penalty
amounting to Rs.79,60,365/- under Section
74 of the CGST Act, 2017, read with the
IGST Act, 2017.

(vi).
I
impose
the
penalty
amounting to Rs.79,60,365/- under Section
122 (1)(viii) of the CGST Act, 2017 for
obtaining refund fraudulently, read with
the IGST Act, 2017.

(vii).
I
impose
the
penalty
amounting to Rs.79,60,365/- under Section
122 (1)(xiv) of the CGST Act, 2017 for
transporting taxable goods without the
cover of specified documents i.e. e-way bill,
read with the IGST Act, 2017."

6. The respondents aggrieved against
the said order preferred an appeal before
the Additional Commissioner (Appeals)
CGST,
Lucknow
wherein
it
was
specifically stated that the inputs received
by the respondents were sent from Surat to
the warehouse of the respondents at Surat
where
they
were
processed
and
subsequently the goods were exported
through ICD Kanpur after transporting the
goods from Surat to Kanpur. They placed
reliance
upon
the
notification
No.GSL/GST/Rule-138 (14)/B.19 dated
19.09.2018 issued by the Commissioner of
State Tax, Gujarat State Ahmadabad
wherein the authority had issued a
notification providing that e-way bill was
not required to be generated for intra-city
movement of any goods irrespective of the
value.

Placing reliance on the said
notification, the respondents argued before
the Commissioner (Appeals) that the
foundation for passing of the order, namely
non-generation of e-way bills had no basis
as the goods were received by the
respondents from suppliers at Surat at their
office at Surat and thus there was no
requirement of the generation of e-way bill
by the suppliers. The Commissioner
(Appeals) agreeing with the contentions as
raised by the respondents proceeded to
allow the appeal by means of the impugned
judgment dated 13.08.2021 whereby, the
appeal was allowed and the order under
challenge was set aside and further
directions were issued to sanction the
9 All. Principal Commissioner Cgst & Central Excise Lucknow & Anr. Vs. M/s Bushrah Export
 House Two Star Lko & Anr.
1733
refund of amount of Rs.18,41,725/- to the
appellant.

7. The department has preferred the
present writ petition challenging the said
order in view of the fact that the appellate
tribunal has not been created as prescribed
under the statute and the petitioner cannot
be left remedy-less in the absence of
creation of the statutory tribunal.

8. Sri K. D. Nag appearing on behalf
of the petitioner argues that in view of the
averments as made in the memo of the
appeal, the respondents admit that the
goods were transported from Surat to ICD
Panki Kanpur for its further export without
the e-way bills and in view of the statement
as contained in the memo of appeal, the
appellate authority has erred in allowing
the appeal.

9. Subsequent to the filing of the
appeal, a supplementary affidavit was filed
duly sworn by one Sri Rakesh Srivastav
wherein he had specifically stated that no eway bills were ever annexed with the
appeal and they were not produced before
the
learned
Additional
Commissioner
(Appeals). The said averments made in
paragraph 7 of the supplementary affidavit
were sworn on the basis of the records.

10. The counsel for the respondents
had drawn my attention to the specific
assertions made highlighting that the
invoices depicting the purchase of the
goods by the respondents were duly
produced through an excel sheet filed
during the pendency of the appeal on
02.03.2020. The appellate authority in the
impugned order also recorded that in view
of the e-way bills, the respondents were
entitled to the benefit of the notification
dated
19.09.2018
and
on
the
said
foundation had allowed the appeal. This
court
finding
contradictions
in
the
supplementary
affidavit
filed
by
the
department and the stand taken by the
respondents had called for the records of
the
case
before
the
Commissioners
(Appeals), which has been produced today.
I have perused the record which contain the
invoices whereby the goods were supplied
by the suppliers to the respondents at Surat.

11. In view of the records as produced
today,
prima-facie
the
supplementary
affidavit filed by Sri Rakesh Srivastava,
prima-facie does not appear to be correct.
Sri K. D. Nag clarifies that the affidavit
was filed based upon the copy of the memo
of the appeal served by the respondents to
the department and there was no deliberate
error or misleading of the facts. The court
accepts the said explanation offered by Sri
Nag with a advice that the department
should be careful in future in filing such
affidavit.

12. Coming to the facts leading to the
present case, the show cause notice as
issued to the petitioner had made three
precise allegations that the supplier of the
goods to the respondents had supplied the
goods without generation of the e-way bills
which was contrary to the E-Way Bill
Rules
and
thus,
the
claim
of
the
respondents was liable to be rejected. That
being the nature of the allegations levelled
in the show cause notice, the submission of
Sri K. D. Nag that the goods sent from
Surat to Kanpur for export did not carry eway bills as admitted by the respondents in
their memo of appeal, cannot be accepted
as it is well settled that the allegations as
levelled in the show cause notice should be
clear and specific and the findings cannot
go beyond the allegations as levelled in the
show cause notice.
1734 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It is well settled that the show cause
notice is issued to make the noticee understand
the allegation and facts as are levelled in the
show cause notice and it is aimed that putting
the noticee to whom the show cause notice is
issued on guard, this view has been expressed
by the Hon'ble Supreme Court in the case of
Oryx Fisheries Private Limited vs. Union of
India and others; (2010) 13 SCC 427,
judgment of the Supreme Court in the case of
Siemens Public Communication Networks
Private Limited and another vs. Union of
India and others reported at (2008) 16 SCC
215 and explaining in Gorkha Security
Services vs. Government of NCT (2014) 9
SCC 105. In the present case, the show cause
notice is confined to the allegations against the
respondents receiving the supplies of goods
without the e-way bills, which fact has been
dealt with by the appellate authority after
perusing the invoices that the goods were
supplied to the respondents from Surat to Surat
and thus, the notification dated 19.09.2018
was clearly in favour of the respondents.

14. In the present case, no allegations
were levelled in the show cause notice to the
effect that the respondents had transferred the
finished goods for export from Surat to Kanpur
without e-way bill as such the arguments of Sri
Nag on that count are without any foundation
and thus liable to be rejected.

15. In view of the specific finding by the
Commissioner (Appeals) that the goods were
received by the respondents through e-way bills
within the same city, there was no requirement
of generation of e-way bills as provided under
the notification dated 19.09.2018, the said
finding has not been shown to be perverse or in
any way arbitrary or illegal in the arguments as
raised by Sri Nag and referred to above.

16. In view thereof, no interference is
called for in the appellate order.

17. The writ petition lacks merit and
is dismissed.
----------
(2022) 9 ILRA 1734
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.05.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DINESH PATHAK, J.

Writ C No. 30563 of 2021

Satyendra Kumar Yadav ...Petitioner
Versus
U.O.I. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ram Raj Prajapati, Sri Dinesh Kumar
Maurya

Counsel for the Respondents:
A.S.G.I., Sri Gaurav Kumar Chand, Sri
Nishant Mehrotra

A. Civil Law - Constitution of India, 1950Article 226- in the instant case, no
document was required to be filed along
with the application form- The procedure
followed by HPCL was that after an
applicant is selected, he is informed of the
same and at that stage, he was required
to submit documents, therefore, even if
the affidavit, as initially filed by the
petitioner, was of a subsequent date, it
would have no adverse effect nor would
render
his
candidature
ineligible-In
alternative,
he
submitted
that
the
petitioner having filed on record the
affidavit of his mother of a date prior to
submission of application form and there
being no time limit prescribed under the
brochure for supplying the documents, the
affidavit
filed
along
with
the
representation dated 24.7.2019 ought to
have been considered-the decision taken
by the respondent No. 2 declining to
consider the affidavit submitted by the