Order Date – 13 December 2023

Parties: M/s PepsiCo India Holdings Pvt Ltd Vs The Union of India and 3 Ors, The Additional Commissioner, Superintendent and Principal Commissioner

Facts –

• The Petitioner, M/s PepsiCo India Holdings Pvt Ltd, was served with a Demand-cum-Show Cause Notice dated 05.09.2023 alleging that there is an un[1]reconciled ITC as reflected in the GSTR-9C for the Financial Year: 2017-2018 and the petitioner is liable to reverse the wrongly availed and utilized ITC under Section 73[1] of the CGST Act, 2017 along with applicable interest under Section 50 of the CGST Act, 2017 and penalty under Section 73[9] of the CGST Act, 2017.
• It has been contended by the petitioner that the mandatory conditions precedent required for invoking the provisions of Section 73[1] of the CGST Act, 2017 for issuance of the impugned Demand-cum-Show Cause Notice are palpably absent in the case in hand.

Issue –

• Whether the Demand-cum-Show Cause Notice is issued properly?

Order –

• The Single Bench of Hon’ble High Court observed that the alleged discrepancy would only be a discrepancy simplicitor but at the stage of issuance of Demand-cum-Show Cause Notice under Section 73[1] of the CGST Act, 2017, there is formation of a prima facie opinion on the part of the Proper Officer that there is an act, which is in violation of the statutory obligation cast on the noticee. Admittedly in the case in hand, the Form GST ASMT-10 was not issued to the petitioner.
• Further found that an act of issuance of the impugned Demand-cum-Show Cause Notice dated 05.09.2023 under Section 73[1] of the CGST Act, 2017 by the Proper Officer was without compliance of the mandatory conditions precedent, prescribed under the CGST Act, 2017 and the CGST Rules, 2017, more particularly, the provisions of Section 61 of the CGST Act, 2017 r/w Rule99 of the CGST Rules, 2017, to derive jurisdiction to issue such a Demand-cum- Show Cause Notice under Section 73[1] of the CGST Act, 2017.
• Thus the it is ordered that the operation of the impugned Demand-cum-Show Cause Notice shall remain stayed, till the returnable date.