Vivek Ramvilas Bansal v. Deputy Commissioner of State Tax, Division 1
[Citation -2020-LL-0205-152]

Citation 2020-LL-0205-152
Appellant Name Vivek Ramvilas Bansal
Respondent Name Deputy Commissioner of State Tax, Division 1
Court HIGH COURT OF GUJARAT AT AHMEDABAD
Relevant Act CGST
Date of Order 05/02/2020
Judgment View Judgment
Keyword Tags goods and services tax • release of vehicle • release of goods • redemption fine • penalty


C/SCA/9897/2019 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 9897 of 2019 VIVEK RAMVILAS BANSAL Versus DEPUTY COMMISSIONER OF STATE TAX, DIVISION 1 Appearance: MR AKSHAY VAKIL(5473) for Petitioner(s) No. 1 MR SOAHAM JISHI, AGP GOVERNMENT PLEADER(1) for Respondent(s) No. 1,2 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 05/02/2020 ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of Constitution of India, writ applicant has prayed for following reliefs: 29[A] be pleased to admit and allow this writ petition. [B] be pleased to issue writ of mandamus, Quo Warranto, or any other appropriate writ, order or direction quashing and setting aside impugned notice dated 30 5 2019 as being illegal, arbitrary, without jurisdiction and unconstitutional. [C] be pleased to direct release of goods seized by respondent authorities. [D] be pleased to direct release of vehicle No.HR 38 Q 7370 seized by Respondent authorities. [E] pending admission, hearing and final disposal of this petition, be pleased to grant interim as well as Ad interim reliefs and thereby stay proceedings initiated vide impugned notice dated 30 5 2019. Page 1 of 7 Downloaded on : Fri Jun 18 12:42:31 IST 2021 C/SCA/9897/2019 ORDER [F] pending admission, hearing and final disposal of this petition, be pleased to grant interim as well as Ad interim reliefs and thereby direct release of goods seized by respondent authorities. [G] pending admission, hearing and final disposal of this petition, be pleased to grant interim as well as Ad interim reliefs and thereby direct release of vehicle No.HR 38 Q 7370 seized by respondent authorities. [H] cost of proceedings to petitioner. [I] be pleased to pass any other further orders as deemed fit just and proper in facts of circumstances of case and in interest of justice. 2. On 10th June, 2019 this Court passed following order: 1. In response to notice issued by this Court, Ms.Maithili Mehta, learned Assistant Government Pleader, has appeared on behalf of respondents. 2. By this writ application under Article 226 of Constitution of India, writ applicant has prayed for following reliefs: (A) Your lordship may be pleased to admit and allow this writ petition. (B) Hon ble Court may be pleased to issue writ of mandamus, Quo Warranto, or any other appropriate writ, order or direction quashing and setting aside impugned notice dated 30 5 2019 as being illegal, arbitrary, without jurisdiction and unconstitutional. (C) Hon ble Court may be pleased to direct release of goods seized by Respondent authorities. (D) Hon ble Court may be pleased to direct release of vehicle no HR 38 Q 7370 seized by Respondent authorities. (E) Pending admission hearing and final disposal of this petition Lordships, may be pleased to grant interim as well as Ad interim reliefs and thereby stay proceedings initiated vide impugned notice dated 30 5 2019. (F) Pending admission hearing and final disposal of this petition Lordships, may be pleased to grant interim as well as Ad interim Page 2 of 7 Downloaded on : Fri Jun 18 12:42:31 IST 2021 C/SCA/9897/2019 ORDER reliefs and thereby direct release of goods seized by Respondent authorities. (G) Pending admission hearing and final disposal of this petition Lordships, may be pleased to grant interim as well as Ad interim reliefs and thereby direct release of vehicle no HR 38 Q 7370 seized by Respondent authorities. (H) Cost of Proceeding to Petitioner. (I) Your lordships may kindly be pleased to pass any other further orders as deemed fit just and proper in facts of circumstances of case and in interest of justice. 3. Having heard learned counsel appearing for parties and having gone through materials produced on record, we propose to pass interim order with regard to release of vehicle and goods seized by officers of GST Department. 4. It appears from materials on record that writ applicant herein is engaged in business of plywood. He is registered dealer under Goods and Service Tax Act ( GST for short). writ applicant ordered goods, i.e. plywood, from manufacturer by name Sagar Industries, carrying on business in Haryana. manufacturer, namely Sagar Industries, issued tax invoice dated 21.05.2019 for value of goods estimated at Rs.4,38,034/. IGST at rate of 18% at Rs.78,486/ has been charged in said invoice. manufacturer dispatched goods vide Vehicle No.HR 38 Q 7370 owned by Sondhi Cargo Movers, Yamuna Nagar, Haryana. While goods were in transit, vehicle was intercepted by officers of GST Department somewhere near Sanathal on 26.05.2019 at around 9:15 PM. case of Department is that goods have been undervalued. According to Department, goods are worth Rs.11 lakh whereas goods valued by manufacturer is around Rs.4,15,000/ . 5. Ms. Maithili Mehta, learned Assistant Government Pleader, submitted that writ applicant or manufacturer are liable to pay in all around Rs.2,15,000/ towards GST. According to Ms. Maithili Mehta, Rs.78,000/ has already been paid. balance amount of approximately Rs.1,36,000/ still remains to be paid. Ms.Maithili Mehta submitted that proceedings under Section 130 of GST has been initiated. 6. moot question that needs to be determined in present writ application is with regard to interpretation of Sections 129 and 130 of GST respectively. We are informed that batch of Page 3 of 7 Downloaded on : Fri Jun 18 12:42:31 IST 2021 C/SCA/9897/2019 ORDER writ applications on this issue is pending for hearing. Well, main issue will be decided in accordance with law. However, today, we are concerned with passing of interim order releasing vehicle, i.e. Trailor and goods, i.e. plywood. 5. We are of view that ultimately, if liability is fixed in accordance with stance of Department, then amount of Rs.1.36 lakh would be payable. This would be approximate figure. We propose to pass order directing officials of Department to release Trailor as well as goods at earliest on condition that amount of Rs.1.50 lakh is deposited by writ applicant with concerned Department by day after tomorrow, i.e. 12.06.2019. Once amount is deposited, officials shall immediately release vehicle and goods. 7. In passing aforesaid order, we take support of one order passed by coordinate Bench of this Court dated 08.03.2019 in Special Civil Application No.4730 of 2019. order reads thus: 1. On 06.03.2019 this Court had passed order in following terms; "1. Mr. Uchit Sheth, learned advocate for petitioners invited attention of court to provisions of sections 129 and 130 of Central Goods and Services Tax Act, 2017, to point out procedure which is required to be followed by respondent authorities in case where any goods are in transit in contravention of provision of Act or rules made thereunder. It was pointed out that firstly, under section 129 of Act, officer is required to issue notice as contemplated under subsection (3) thereof and thereafter, after affording opportunity of hearing to person concerned, pass order thereunder. It was submitted that it is only if there is no compliance of order passed under section 129 of Act, that provisions of section 130 of IGST Act can be resorted to. attention of court was invited to impugned show cause notice dated 1.3.2019, to submit that same seeks to impose penalty, redemption fine and confiscation under section 130 of Act without initiating any proceedings under section 129 of Act, which is not permissible in law. It was further submitted that integrated goods and services tax has already been paid on goods in question at time of import thereof and that goods in question are perishable goods with limited shelf life. 2. Having regard to submissions advanced by learned Page 4 of 7 Downloaded on : Fri Jun 18 12:42:31 IST 2021 C/SCA/9897/2019 ORDER counsel for petitioners, Issue Notice returnable on 8th March, 2019. Direct Service is permitted today." 2. In response to notice, Mr. Soham Joshi, learned Assistant Government Pleader, has appeared on behalf of respondents. 3. learned Assistant Government Pleader has invited attention of Court to detention order dated 14.02.2019 issued by proper officer under subsection (1) of section 129 of Central Goods and Services Tax Act, 2017 (hereinafter referred to as "the CGST Act") and other relevant statutes. It was submitted that goods in question were not accompanied by E way bill during course of transit and therefore, respondents are fully justified in passing detention order under section 129(1) of CGST Act. 4. Subsection (3) of section 129 of CGST Act provides that proper officer detaining or seizing goods or conveyances shall issue notice specifying tax and penalty payable and thereafter, pass order for payment of tax and penalty under clause (a) or clause (b) or clause (c). Subsection (4) provides that no tax, interest or penalty shall be determined under subsection (3) without giving person concerned opportunity of being heard. 5. In present case, show cause notice dated 01.03.2019 has been issued under section 130 of CGST Act calling upon petitioner to show cause as to why goods in question as well as vehicle should not be confiscated for nonpayment of amount of Rs.60,72,639/ , as detailed therein. On query by Court, learned Assistant Government Pleader is not in position to point out that procedure, as contemplated under subsections (3) and (4) of section 129 of CGST Act, has been followed. Thus, prima facie, it appears that show cause notice under section 130 of CGST Act has been issued without complying with requirements of section 129 of CGST Act. It is also admitted position that goods in question are perishable in nature. 6. In aforesaid premises, in opinion of this Court, petitioner has made out strong prima facie case for grant of interim relief. By way of interim relief, respondents are hereby directed to forthwith release goods in question and Truck bearing registration no.GJ 07 UU 7250 detained/seized under purported exercise of powers under sections 129 and 130 of CGST Act. However, petitioner shall file undertaking before this Court within week from today to effect that in case Page 5 of 7 Downloaded on : Fri Jun 18 12:42:31 IST 2021 C/SCA/9897/2019 ORDER petitioner, ultimately, does not succeed in petition, he shall duly cooperate in further proceedings. 7. Stand over to 27.03.2019, so as to enable respondents to file affidavit in reply, if any, in matter. Direct service is permitted today. 8. vehicle bearing registration No.HR 38 Q 7370 as well as goods, i.e. plywood, detained/seized under purported exercise of powers under Sections 129 and 130 of CGST Act shall be released immediately upon deposit of Rs.1.50 lakh with concerned Department. 9. Post this matter for further hearing on 19.06.2019. To be heard with Special Civil Application No.4730 of 2019 and allied matters. On returnable date, learned Advocate General is requested to assist this Court in this particular matter. Direct Service is permitted. 3. Pursuant to notice issued under Section 129 of Act determining amount to be paid towards tax and liability, requisite amount has been paid by writ applicant and conveyance and goods have been released. It appears that later, show cause notice came to be issued under Section 130 of Act calling upon writ applicant to show cause why goods and conveyance should not be confiscated. 4. As matter is now at stage of MOV 10, writ applicant shall appear before authority and file appropriate reply to make good his case that notice issued in GST MOV 10 deserves to be discharged. It shall be open for writ applicant to place reliance on recent pronouncement of this Court in case of Synergy Fertichem Pvt. Ltd Vs. State of Gujarat [Special Civil Application No.4730 of 2019]. Page 6 of 7 Downloaded on : Fri Jun 18 12:42:31 IST 2021 C/SCA/9897/2019 ORDER 5. With above, this writ application stands disposed of. Direct service is permitted. (J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) aruna Page 7 of 7 Downloaded on : Fri Jun 18 12:42:31 IST 2021 Vivek Ramvilas Bansal v. Deputy Commissioner of State Tax, Division 1
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