BharatTaxGST

M/S Shree Pampapathy Enterprises vs. Union Of INDIA

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WP/101517/2023HC KarnatakaGSTCNR KAHC02003641202321 March 2023Bench: M.I.ARUN6 pages
For Petitioner: SRI. VENKATESH KUMAR S., ADVOCATEFor Respondent: SRI. SHIVAPRABHU HIREMATH, AGA FOR R1 TO R3

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Cause title — parties, addresses and appearances
- 1 - WP No. 101517 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF MARCH, 2023 BEFORE THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO. 101517 OF 2023 (T-RES) BETWEEN: M/S. SHREE PAMPAPATHY ENTERPRISES, 561A, MUNDGOD MAIN ROAD, SUBASH NAGAR, MUNDGOD, UTTARA KANNADA, KARNATAKA-581 349, REPRESENTED BY ITS PROPROETOR, SRI IMAMAHUSEN MAJARESAB MANNANAVAR, … PETITIONER (BY SRI. VENKATESH KUMAR S., ADVOCATE) AND: 1. UNION OF INDIA, THROUGH ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, ROOM NO.137, NORTH BLOCK, NEW DELHI-100001. 2. STATE OF KARNATAKA, THROUGH ITS PRINCIPAL, SECRETARY FINANCE DEPARTMENT, VIDHANA SOUDHA, BANGALORE-560001. 3. COMMERCIAL TAX OFFICER, (ENFORCEMENT)-7, VANIJYA THERIGE KARYALAYA, 1ST FLOOR, RAGHAVENDRA COLONY, ANANTHAPUR ROAD, BELLARY, KARNATAKA-583101. … RESPONDENTS (BY SRI. SHIVAPRABHU HIREMATH, AGA FOR R1 TO R3) R VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Location: Dharwad Date: 2023.03.23 10:37:56 +0530 - 2 - WP No. 101517 of 2023 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TOA) ISSUE WRIT OF CERTIORARI TO QUASH AND SET ASIDE THE IMPUGNED NOTICE VIDE NO. CTO/ ENF-7/ BLY/ 2022-23, DATED 24.01.2023 IN FORM GST MOV-10 (AT ANNEXURE-E) AS WELL AS IMPUGNED ORDER VIDE NO. 27/2022-23 DATED 07.02.2023 (AT ANNEXURE-H) PASSED IN FORMGST MOV-11 UNDER SECTION 130 OF GST ACT READ WITH SEC. 20 OF THE IGST ACT ISSUED BY THE 3RD RESPONDENT FOR CONFISCATION OF GOODS, CONVEYANCE AND DEMAND OF PENALTY AND FINE AS BEING VOID, ILLEGAL WITHOUT JURISDICTION & ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING B-GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

1.

Aggrieved by the order of confiscation of goods conveyance and demand of penalty and fine passed under Section 130 of CGST Act, 2017 and MOV-11, dated 07.02.2023 in order No.27/2022-23 by respondent No.3, the petitioner has preferred this writ petition.

2.

The petitioner being owner of certain goods was transporting the same from Mundgod, Uttara Kannada to Ongloe Prakasham, Andhra Pradesh. The goods and conveyance were seized near Ananthpur Bypass Toll Plaza, Ballari, proceedings were initiated and the impugned order

- 3 - has been passed under the provisions of Section 130 of the CGST Act.

3.

The said order has been challenged on the ground that the same has been passed without affording proper opportunity of hearing to the petitioner and the same is in violation of Section 130(4) of the CGST Act, 2017 and in violation of the principles of natural justice and on other grounds.

4.

Learned AGA upon instructions submits that the impugned order is passed in accordance with law. That the petitioner was given an opportunity to reply to the allegations made and he has filed a written reply and the same has been considered before passing the order and if he is aggrieved, he has an alternative efficacious remedy to file an appeal under Section 107 of the CGST Act, 2017. 5. The impugned order reveals that an opportunity was given to the petitioner to file his reply and he has filed his reply, which has been considered and rejected by

- 4 - respondent No.

3.

Section 130(4) of the CGST Act, reads as under: “130. Confiscation of goods or conveyance and levy of penalty. XXXXX (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.”

6.

Section 130 of the CGST Act is a code by itself, which provides for confiscating the goods and the conveyance and under certain eventualities the confiscated material vests with the Government and the same can be auctioned. When such harsh measures are initiated against any person, it is very essential that a proper opportunity of hearing has to be given and what is contemplated in Section 130(4) is “an opportunity of being heard” and not a mere opportunity of filing objections to the action contemplated. In the instant case, the petitioner has been granted an opportunity to file his

- 5 - objections but not an opportunity of hearing. Hence, on the short point, the writ petition is liable to be allowed by setting aside the impugned order and remanding the matter back to respondent No.3 to give an opportunity of hearing to the petitioner and thereafter pass appropriate order. ORDER (i) The writ petition is hereby allowed. (ii) The impugned order dated 07.02.2023 passed in Order No.27/2022-23 by respondent No.3 under Section 130 of the CGST Act, and MOV-11 (vide Annexure-H) is hereby set aside. (iii) The matter stands remanded to respondent No.3 with a direction to provide an opportunity of hearing to the petitioner and thereafter pass appropriate orders in accordance with law.

- 6 - (iv) The petitioner shall appear before respondent No.3 on 10.04.2023 without further notice. (v) In view of allowing of the writ petition, pending applications, if any, do not survive for consideration and the same are accordingly disposed off. JUDGE

Vnp* List No.: 2 Sl No.: 10

Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.