IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941 WP(C).No.6350 OF 2020(P) PETITIONER/S: SHREE ENGINEERS CONTRACTORS P LTD 416,PREM TRADE CENTRE,MAHARANI ROAD,INDORE,452007,MADHYA PRADESH,INDIA,REPRESENTED BY IT'S MANAGER (COMMERCIAL )MR.KALESA KURUP.K. BY ADVS. SMT.K.LATHA SMT.JESSY MANUEL RESPONDENT/S: ASSISTANT STATE TAX OFFICER SQUAD NO.II,KERALA STATE GST DEPARTMENT,KASARGOD- 671122. OTHER PRESENT: DR THUSHARA JAMES GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.6350 OF 2020(P) 2 JUDGMENT Dated this 4th day of March 2020 Petitioner is Private Limited company registered under GST Act with GSTIN Number 23AAPC30963AIZL, which entered into works contract agreement with M/S Offshore Infrastructure Limited, Mumbai to execute work of Piping and Equipment Insulation works for offsite job for propellene Derivative Petrochemical Projects of M/s.Bharat Petroleum Corporation Limited, Kochi Refinery, Cochin. aforementioned facts are evidenced from Ext.P1. 2. M/s. Offshore Infrastructure Limited is registered dealer under GST in Kerala and have been executing works contract of BPCL and paying GST for entire works executing in Kerala, whereas petitioner is only sub contractor. goods in question was transported on strength of three delivery challans dated 22.02.2020, produced as Exts.P2, P2(A) and P2(B). They also come with e- way bills and declaration produced as Exts.P2D and P2E. Smt. Latha.K, learned counsel appearing on behalf of petitioner submits that, for reasons best known to officers of GST, goods were detained vide Ext.P3, and issued memo under Section 129(3) of Central Goods and Services Tax Act, 2017, on premise that consignment was not accompanied by invoice. said requirement is not necessary in view of plain and simple reading of provisions of Rule 138(A) of Central Goods and Services Tax Act, 2017. petitioner is willing to submit, for release of detained goods, half of bank guarantee and half indemnity bond. 3. Dr. Tushara James, learned counsel appearing for State opposes aforementioned contention on premise that it is not case of pure and simple application of Rule 138(A) as pith and substance of averments as well as works contract leaves no manner of doubt that for purpose of work contract, delivery challan is not sufficient for compliance of provisions of Act, 2017. In this regard, reliance has been relplaced to Rule 55 and Schedule II of Act, 2017. She also referred to provisions of definition of works contract defined under Section 2(119) of Act, 2017. For purpose of interim relief, attention of this Court have been drawn to provisions of Section 129(1)(b) and 129(1)(c) as well as Rule 140 of Act, 2017. For purpose of provisional release of seized goods, security in form of bank guarantee equivalent to amount of applicable tax, interest and penalty is liable to be paid, and urges this Court for dismissal of writ petition with further request that all these factors would be considered by adjudicating authority. 4. Heard learned counsel for parties and appraised particulars. Petitioner is not willing to pay security in form of bank guarantee equivalent to amount of applicable tax, interest and penalty, without expressing any opinion on merits as to strict applicability of Rule 138(A) or Rule 55 read with Section 129 or Rule 140. In my view, it is in domain of adjudicating authority. Since goods are already lying seized with effect from 27.02.2020, goods can be released on furnishing of Bank guarantee for full amount as per provision of Section 129 of CGST Act, 2017. 5. I dispose of writ petition with direction to adjudicating authority to adjudicate matter with regard to goods being in compliance with provisions of Act or otherwise as expeditiously as possible, preferably within period of 45 days from receipt of certified copy of this judgment, in accordance with law, after affording opportunity of hearing to parties. writ petition is disposed of as above. Sd/- AMIT RAWAL JUDGE uu APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF SERVICE ORDER NO.OIL/3157/18-19/W0/02/0063 DATED 14.2.2019 ALONG WITH CONNECTED DETAILS OF WORKS CONTRACT AGREEMENT ENTERED BY PETITIONER COMPANY WITH M/S OFFSHORE INFRASTRUCTURE LIMITED,27,UDYOG KSHETRA,MULUND GOREGON LINK ROAD,MULUND(W)MUMBAI 4000080. EXHIBIT P2 TRUE COPY OF DELIVERY CHALLANS NO.SECPLC19-20/606,DATED 22.02.2020 ISSUED BY PETITIONER EXHIBIT P2A TRUE COPY OF DELIVERY CHALLAN SECPLC19-20/607,DATZED 22.02.2020 ISSUED BY PETITIONER EXHIBIT P2B TRUE COPY OF DELIVERY CHALLAN SECPLC19-20/608,ALL DATED 22.02.2020 ISSUED BY PETITIONER EXHIBIT P2C TRUE C0PY OF LR COPIES OF TRANSPORTATIONS OF GOODS EXHIBIT P2D TRUE COPY OF 3 e-WAY BILLS OF THESE TRANSPORATION OF GOODS EXHIBIT P2E TRUE COPY OF DECLARATION DATED 22- 2-2020 ISSUED BY PETITIONER EXHIBIT P3 TRUE COPY OF DETENTION ORDER IN FORM GST MOV-04,FORM GST MOV-06 AND FORM GST MOV-07 ALL DATED 27.02.2020 ISSUED BY RESPONDENT TO PETITIONER. Shree Engineers Contractors P. Ltd. v. Assistant State Tax Officer