Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 27TH DAY OF JULY 2023 / 5TH SRAVANA, 1945 WP(C) NO. 24656 OF 2023 PETITIONER:
MUHAMMAD SALEEM SHEMSUDEEN, AGED 46 YEARS AGED 46 YEARS, PROPRIETOR, INDIAN SCRAP SUPPLIER, 9/172 C1, MUHAMMED ZACHARIYA BUILDING, KARAVAKKARAN PARAMBIL, KAYAMKULAM, ALAPPUZHA., PIN – 690515 BY ADVS.V.DEVANANDA NARASIMHAM P.H.RIYAS RESPONDENTS:
1 THE ENFORCEMENT OFFICER ENFORCEMENT SQUAD, KSGST DEPARTMENT, ASRAMAM- P.O, KOLLAM, PIN – 691002 2 THE STATE TAX OFFICER TAX PAYER SERVICE CIRCLE, KSGST DEPARTMENT, 6TH FLOOR, REVENUE TOWER, HARIPAD, ALAPPUZHA, PIN – 690514 3 THE SECRETARY TO TAXES GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN – 695001 4 THE CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI, PIN - 110001 SR GP SMT THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT Dated this the 27th day of July 2023 The writ petition is filed, inter alia, to quash Ext.P12 confiscation order passed by the first respondent.
2. The relevant factual matrix for the determination of the writ petition are thus:
2.1. The petitioner is a registered dealer under the Integrated Goods and Services Tax Act, Central & State Goods & Services Tax Acts (in short ‘the GST Acts’) holding Ext.P1 GST registration.
2.2. The petitioner has promptly filed his monthly returns in Form GSTR-3B, as evidenced by Ext.P2 monthly return, for the months of April-May 2023.
2.3. The petitioner had availed Input Tax Credit on the basis of Form GSTR-2B and remitted tax of Rs.3,10,838/- and 4,06,406/- for the months of April and May 2023, respectively.
2.4. The petitioner had purchased goods from other registered dealers as reflected in Ext.P3 E-way bills.
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2.5. During the course of business, the petitioner had sold 12,860 Kg iron scrap to a GST registered dealer in Goa as discernible from Ext.P4 E-tax invoice.
The goods were moved through a conveyance bearing No.KL66 8061 along with Ext.P5 E-way bill.
2.6. On 7.7.2023, while the consignment was passing through Kayamkulam, the first respondent intercepted the conveyance and served Exts.P6 and P7 notices on the driver, for the physical verification of the conveyance, the goods and the documents.
2.7. After three days, the first respondent issued Ext.P8 report on the physical verification of the conveyance.
2.8. Subsequently, the first respondent issued Ext.P9 notice in GST MOV-10, directing the petitioner to show cause why the goods and conveyance shall not be confiscated.
2.9. It is alleged in Ext.P9 that, the inward supplies of the petitioner are dummy/fake and the suppliers have been suspended.
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2.10. The petitioner submitted Ext.P10 reply to Ext.P9 show cause notice.
2.11. Ext.P11 circular promulgated by the Government of India, Ministry of Finance, lays down the procedure for interception of conveyances, inspection of goods in movement, detention, release and confiscation of goods and conveyances.
2.12. Later, the first respondent issued Ext.P12 confiscation order, in GST MOV-11, confiscating the conveyance and the goods.
2.13. Ext.P12 is illegal, arbitrary and in total contravention of the provisions of the GST Act and the Rules framed thereunder, and Ext.P11 circular.
Hence, the writ petition.
3. Heard; Sri.Devananda Narasimham.V, the learned counsel appearing for the petitioner and Smt.Thushara James, the learned Senior Government Pleader appearing for the respondents.
4. The learned counsel appearing for the petitioner reiterated the contentions in the writ petition. He placed reliance on the unreported judgment of this Court in
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Gokul P.G. v. State of Kerala and others and connected cases (W.P.(C)No.21907/2020) to fortify his contention that the respondents cannot directly proceed under Section 130 of the CGST Act, instead has to first proceed under Section 129 of the CGST Act and, thereafter, under Section 130 because the provisions are dependent on each other. As the respondents have not proceeded under Section 129, the entire proceedings are vitiated, illegal and arbitrary. Moreover, Exts.P1 registration certificate, P2 and P3 documents disprove that the petitioner has created fake/dummy supplies. Therefore, the respondents may be directed to release the conveyance and the goods to the petitioner, by setting aside Ext.P12 order.
5.
The learned Senior Government Pleader vehemently resisted the writ petition and argued that the judgment relied on by the learned counsel for the petitioner is rendered prior to the amendment of the Act.
In the post amendment regime of the Act, i.e., post 2021,
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Sections 129 and 130 of the CGST Act are independent, and has been observed by this Court in paragraph 8 of the Gokul P.G.(supra). Moreover, it is the discretion of the inspecting officer to decide whether the conveyance and the goods have to be proceeded under Sections 129 or 130 of the CGST Act. She contended that Ext.P12 order, prima facie establishes that the petitioner has indulged in fabricating dummy/fake invoices and has fraudulently evaded GST. The investigation reveals that the petitioner is not functioning at the premises shown in Ext.P1 registration certificate. The respondents have initiated proceedings to cancel the registration of the petitioner. The petitioner has an alternative statutory remedy under Section 107 of the CGST Act. The present investigation is only the tip of the iceberg. If this Court unnecessarily interferes with the investigation, it will jeopardize national interest. Hence, the writ petition may be dismissed.
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6. The trump card of the petitioner is that the respondents ought to have proceeded under Section 129 before invoking to Section 130 of the CGST Act.
7. It is apposite to extract Section 130 of the Act, which reads as follows:
“Section 130 - Confiscation of goods or conveyances and levy of penalty (1) Notwithstanding anything contained in this Act, if any person (i) supplies or receives any goods in contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or (ii) does not account for any goods on which he is liable to pay tax under this Act; or (iii) supplies any goods liable to tax under this Act without having applied for registration; or (iv) contravenes any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or (v) uses any conveyance as a means of transport for carriage of goods in contravention of the provisions of this Act or the rules made thereunder unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance, then, all such
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goods or conveyances shall be liable to confiscation and the person shall be liable to penalty under section 122.
(2) Whenever confiscation of any goods or conveyance is authorised by this Act, the officer adjudging it shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the said officer thinks fit: Provided that such fine leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon:
Provided further that the aggregate of such fine and penalty leviable shall not be less than the amount of penalty leviable under sub- section (1) of section 129: Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon.
(3) Where any fine in lieu of confiscation of goods or conveyance is imposed under sub- section (2), the owner of such goods or conveyance or the person referred to in sub- section (1), shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance.
(4) No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard.
(5) Where any goods or conveyance are confiscated under this Act, the title of such
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goods or conveyance shall thereupon vest in the Government.
(6) The proper officer adjudging confiscation shall take and hold possession of the things confiscated and every officer of Police, on the requisition of such proper officer, shall assist him in taking and holding such possession.
(7) The proper officer may, after satisfying himself that the confiscated goods or conveyance are not required in any other proceedings under this Act and after giving reasonable time not exceeding three months to pay fine in lieu of confiscation, dispose of such goods or conveyance and deposit the sale proceeds thereof with the Government.” 8. A reading of the post amended Section 130 of CGST Act, extracted above, undoubtedly demonstrates that if a person contravenes any of the provisions of the Act, with an intend to evade payment of tax, then such goods or conveyance are liable to be confiscated and the person is liable to pay damages.
9. Subsequent to the amendment of the CGST Act, the Government of India has promulgated Ext.P11 circular laying down the procedure to be followed.
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10. Clause (l) of Ext.P11 circular stipulates that where the proper officer is of the opinion that the movement of the goods is being effected to evade payment of tax, he may directly invoke Section 130 of the CGST Act, by issuing notice, proposing to confiscate the goods and conveyance, in Form GST MOV-10.
11. On an appreciation of the pleadings and materials on record, it is evident that it is after issuing MOV 1 and 2, the first respondent had issued Ext.P9 show cause notice in GST MOV-10 under Section 130, directing the petitioner to show cause why the proceedings should not be initiated against him under Section 130 of the GST Act. The petitioner submitted Ext.P10 reply to the said notice.
12. The first respondent, after adverting to Ext.P10 reply, has passed Ext.P12 order under Section 130, confiscating the conveyance and the goods, and has directed the same to be released, on payment of penalties
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and fines within a period of 14 days from the date of the order.
13. On going through Exts.P9 to P12, I do not find any extra ordinary circumstances made out, to entertain the writ petition by exercising the plenary powers of this Court under Article 226 of the Constitution of India, and set aside Ext.12 order. It would be up to the petitioner to invoke his statutory remedies as provided under the GST Acts.
Resultantly, this writ petition is dismissed without prejudice to the right of the petitioner to work out his remedies as per the GST Act.
Sd/- C.S.DIAS JUDGE jes
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APPENDIX OF WP(C) 24656/2023 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 05-02-2020 ISSUED IN FORM-GST REG-06 BY 2ND RESPONDENT TO THE PETITIONER.
Exhibit-P2 TRUE COPIES OF MONTHLY RETURNS E-FILED IN FORM GSTR-3B FOR APRIL AND MAY 2023 ON 07-06-2023 THROUGH GSTN BEFORE 2ND RESPONDENT.
Exhibit-P3 TRUE COPIES OF TAX INVOICES 154 DATED 23-06-2023, 117 DATED 03-07- 2023, 83 DATED 04-07-2023, 94 & 122 BOTH DATED 07-07-2023 AND CORRESPONDING E-WAY BILLS RECEIVED BY THE PETITIONER.
Exhibit-P4 TRUE COPY OF THE E-TAX INVOICE NO.23-24/85 DATED 07-07-2023 GENERATED BY THE PETITIONER THROUGH GSTN ISSUED TO THE GOA BUYER.
Exhibit-P5 TRUE COPY OF THE E-WAY BILL NO.541522071922 DATED 07-07-2023 GENERATED BY THE PETITIONER THROUGH GSTN AT 09-51 PM TO MOVE THE CONSIGNMENT FROM KAYAMKULAM TO GOA.
Exhibit-P6 TRUE COPY OF FORM GST MOV-01 STATEMENT OF THE DRIVER RECORDED BY 1ST RESPONDENT ON 07-07-2023.
Exhibit-P7 TRUE COPY OF THE ORDER FOR PHYSICAL VERIFICATION OF GOODS, CONVEYANCE AND DOCUMENTS ISSUED IN FORM GST MOV-02 AT 10-40 PM ON 07-07-2023 BY 1ST RESPONDENT TO THE DRIVER.
Exhibit-P8 TRUE COPY OF THE PHYSICAL VERIFICATION REPORT ISSUED IN FORM GST MOV-04 ON 10-07-2023 THROUGH GSTN BY 1ST RESPONDENT TO THE PETITIONER.
Exhibit-P9 TRUE COPY OF NOTICE FOR CONFISCATION OF GOODS AND CONVEYANCE AND TO LEVY PENALTY U/S 130 OF THE GST ACT ISSUED IN FORM GST MOV-10 ON 10-07-2023 THROUGH GSTN BY 1ST RESPONDENT TO THE PETITIONER.
Exhibit-P10 TRUE COPY OF REPLY DATED 17-07-2023 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT DULY ACKNOWLEDGED ON 18-07-2023 AGAINST EXBT-P9 NOTICE.
Exhibit-P11 TRUE COPY OF CIRCULAR NO.41/15/2018-GST DATED 13-04-2018 ISSUED BY 4TH RESPONDENT SPECIFYING PROCEDURE FOR INTERCEPTION OF CONVEYANCE FOR INSPECTION OF GOODS IN MOVEMENT AND DETENTION, RELEASE AND CONFISCATION OF SUCH GOODS AND CONVEYANCES.
Exhibit-P12 TRUE COPY OF ORDER OF CONFISCATION OF GOODS AND CONVEYANCE AND DEMAND OF FINE AND PENALTY DATED 19-07-2023 PASSED U/S 130 OF THE GST ACTS UPLOADED THROUGH GSTN.