Vivek Ramvilas Bansal vs. Deputy Commissioner Of State Tax, Division 1
Original PDF →Facts
The petitioner, Vivek Ramvilas Bansal, a registered dealer in plywood, ordered goods worth approximately Rs. 4,38,034 from Sagar Industries in Haryana. The manufacturer issued a tax invoice charging 18% IGST (Rs. 78,486). The goods were dispatched via vehicle no. HR 38 Q 7370. On May 26, 2019, GST Department officers intercepted the vehicle, alleging undervaluation of goods, estimating their worth at Rs. 11 lakh instead of Rs. 4.15 lakh. The department initiated proceedings under Section 130 of the GST Act, claiming a total GST liability of around Rs. 2,15,000, with Rs. 78,000 already paid and a balance of Rs. 1,36,000. The petitioner filed a writ application seeking to quash the notice and release the seized goods and vehicle.
Held
The Court addressed the immediate concern of releasing the seized goods and vehicle by passing an interim order. It directed the release of the trailer and goods upon the deposit of Rs. 1.50 lakh by the writ-applicant by June 12, 2019. This amount was determined based on the department's estimated liability of Rs. 1.36 lakh, with a slight increase for procedural comfort. The Court noted that the main issue concerning the interpretation of Sections 129 and 130 of the GST Act was pending hearing. Subsequently, the Court observed that pursuant to the notice under Section 129, the requisite amount was paid, and the goods and conveyance were released. A show-cause notice under Section 130 was then issued. The Court directed the petitioner to appear before the authority, file a reply to the Section 130 notice (GST-MOV-10), and make a case for its discharge, allowing reliance on the pronouncement in Synergy Fertichem Pvt. Ltd. Vs. State of Gujarat. The writ application was disposed of with these directions.
Key Issues
1. Whether the show-cause notice issued under Section 130 of the CGST Act is legally sustainable without first complying with the procedures stipulated under Section 129 of the CGST Act, particularly subsections (3) and (4) which mandate issuing a notice specifying tax and penalty and affording an opportunity of hearing before passing an order? (Question of law) Petitioner's Contention: The petitioner argued that proceedings under Section 130, involving confiscation, penalty, and redemption fine, can only be initiated after the procedures under Section 129 are exhausted and there is non-compliance with the order passed thereunder. They relied on the principle that Section 130 is a subsequent step to Section 129. The petitioner also contended that the integrated goods and services tax had already been paid on the goods. Revenue's Contention: The revenue, represented by the Assistant Government Pleader, submitted that the goods were detained under Section 129(1) because they were not accompanied by an E-way bill during transit. They asserted that the detention order under Section 129(1) was justified.
Sections Cited
Section 129, Section 130
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Cause title — parties, addresses and appearances
ORAL ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
By this writapplication under Article 226 of the Constitution of India, the writapplicant has prayed for the 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 the impugned notice dated 3052019 as being illegal, arbitrary, without juri iction and unconstitutional. [C] be pleased to direct the release of goods seized by the respondent authorities. [D] be pleased to direct the release of vehicle No.HR38Q7370 seized by the Respondent authorities. [E] pending admission, hearing and final disposal of this petition, be pleased to grant interim as well as Adinterim reliefs and thereby stay the proceedings initiated vide impugned notice dated 3052019. C/SCA/9897/2019 ORDER [F] pending admission, hearing and final disposal of this petition, be pleased to grant interim as well as Adinterim reliefs and thereby direct the release of goods seized by the respondent authorities. [G] pending admission, hearing and final disposal of this petition, be pleased to grant interim as well as Adinterim reliefs and thereby direct the release of vehicle No.HR38Q7370 seized by the respondent authorities. [H] cost of the proceedings to the petitioner. [I] be pleased to pass any other further orders as deemed fit just and proper in the facts of the circumstances of the case and in the interest of justice.”
On 10th June, 2019 this Court passed the following order: “1. In response to the notice issued by this Court, Ms.Maithili Mehta, the learned Assistant Government Pleader, has appeared on behalf of the respondents.
By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs: “(A) Your lordship may be pleased to admit and allow this writ petition. (B) The 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 the impugned notice dated 3052019 as being illegal, arbitrary, without juri iction and unconstitutional. (C) The Hon’ble Court may be pleased to direct the release of goods seized by the Respondent authorities. (D) The Hon’ble Court may be pleased to direct the release of vehicle no HR 38 Q 7370 seized by the Respondent authorities. (E) Pending admission hearing and final disposal of this petition Lordships, may be pleased to grant interim as well as Adinterim reliefs and thereby stay the proceedings initiated vide impugned notice dated 3052019. (F) Pending admission hearing and final disposal of this petition Lordships, may be pleased to grant interim as well as Adinterim C/SCA/9897/2019 ORDER reliefs and thereby direct the release of goods seized by the Respondent authorities. (G) Pending admission hearing and final disposal of this petition Lordships, may be pleased to grant interim as well as Adinterim reliefs and thereby direct the release of vehicle no HR 38 Q 7370 seized by the Respondent authorities.
(H) Cost of the Proceeding to the Petitioner.
(I) Your lordships may kindly be pleased to pass any other further orders as deemed fit just and proper in the facts of the circumstances of the case and in the interest of justice.”
Having heard the learned counsel appearing for the parties and having gone through the materials produced on record, we propose to pass an interim order with regard to the release of the vehicle and the goods seized by the officers of the GST Department.
It appears from the materials on record that the writ applicant herein is engaged in the business of plywood. He is a registered dealer under the Goods and Service Tax Act (“GST” for short). The writ applicant ordered the goods, i.e. plywood, from the manufacturer by name Sagar Industries, carrying on business in Haryana. The manufacturer, namely Sagar Industries, issued a tax invoice dated 21.05.2019 for the value of goods estimated at Rs.4,38,034/. The IGST at the rate of 18% at Rs.78,486/ has been charged in the said invoice. The manufacturer dispatched the goods vide Vehicle No.HR 38 Q 7370 owned by Sondhi Cargo Movers, Yamuna Nagar, Haryana. While the goods were in transit, the vehicle was intercepted by the officers of the GST Department somewhere near Sanathal on 26.05.2019 at around 9:15 PM. The case of the Department is that the goods have been undervalued. According to the Department, the goods are worth Rs.11 lakh whereas the goods valued by the manufacturer is around Rs.4,15,000/.
Ms. Maithili Mehta, the learned Assistant Government Pleader, submitted that the writ applicant or the manufacturer are liable to pay in all around Rs.2,15,000/ towards the GST. According to Ms. Maithili Mehta, Rs.78,000/ has already been paid. The balance amount of approximately Rs.1,36,000/ still remains to be paid. Ms.Maithili Mehta submitted that the proceedings under Section 130 of the GST has been initiated.
The moot question that needs to be determined in the present writ application is with regard to the interpretation of Sections 129 and 130 of the GST respectively. We are informed that the batch of C/SCA/9897/2019 ORDER writ applications on this issue is pending for hearing. Well, the main issue will be decided in accordance with law. However, today, we are concerned with passing of an interim order releasing the vehicle, i.e. Trailor and the goods, i.e. plywood.
We are of the view that ultimately, if the liability is fixed in accordance with the stance of the Department, then an amount of Rs.1.36 lakh would be payable. This would be an approximate figure. We propose to pass an order directing the officials of the Department to release the Trailor as well as the goods at the earliest on the condition that an amount of Rs.1.50 lakh is deposited by the writ applicant with the concerned Department by dayaftertomorrow, i.e. 12.06.2019. Once the amount is deposited, the officials shall immediately release the vehicle and the goods.
In passing the aforesaid order, we take support of one order passed by a coordinate Bench of this Court dated 08.03.2019 in the Special Civil Application No.4730 of 2019. The order reads thus:
“1. On 06.03.2019 this Court had passed an order in the following terms; "
Mr. Uchit Sheth, learned advocate for the petitioners invited the attention of the court to the provisions of sections 129 and 130 of the Central Goods and Services Tax Act, 2017, to point out the procedure which is required to be followed by the respondent authorities in case where any goods are in transit in contravention of the provision of the Act or the rules made thereunder. It was pointed out that firstly, under section 129 of the Act, the officer is required to issue a notice as contemplated under subsection (3) thereof and thereafter, after affording an opportunity of hearing to the person concerned, pass an order thereunder. It was submitted that it is only if there is no compliance of the order passed under section 129 of the Act, that the provisions of section 130 of the IGST Act can be resorted to. The attention of the court was invited to the impugned show cause notice dated 1.3.2019, to submit that the same seeks to impose penalty, redemption fine and confiscation under section 130 of the Act without initiating any proceedings under section 129 of the Act, which is not permissible in law. It was further submitted that the integrated goods and services tax has already been paid on the goods in question at the time of import thereof and that the goods in question are perishable goods with a limited shelflife.
Having regard to the submissions advanced by the learned C/SCA/9897/2019 ORDER counsel for the petitioners, Issue Notice returnable on 8th March, 2019. Direct Service is permitted today."
In response to the notice, Mr. Soham Joshi, learned Assistant Government Pleader, has appeared on behalf of the respondents.
The learned Assistant Government Pleader has invited the attention of the Court to the detention order dated 14.02.2019 issued by the proper officer under subsection (1) of section 129 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as "the CGST Act") and other relevant statutes. It was submitted that the goods in question were not accompanied by an Eway bill during the course of transit and therefore, the respondents are fully justified in passing the detention order under section 129(1) of the CGST Act.
Subsection (3) of section 129 of the CGST Act provides that the proper officer detaining or seizing the goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an 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 the person concerned an opportunity of being heard.
In the present case, the showcause notice dated 01.03.2019 has been issued under section 130 of the CGST Act calling upon the petitioner to show cause as to why the goods in question as well as the vehicle should not be confiscated for nonpayment of an amount of Rs.60,72,639/, as detailed therein. On a query by the Court, the learned Assistant Government Pleader is not in a position to point out that the procedure, as contemplated under subsections (3) and (4) of section 129 of the CGST Act, has been followed. Thus, prima facie, it appears that the showcause notice under section 130 of the CGST Act has been issued without complying with the requirements of section 129 of the CGST Act. It is also an admitted position that the goods in question are perishable in nature.
In the aforesaid premises, in the opinion of this Court, the petitioner has made out a strong prima facie case for the grant of interim relief. By way of interim relief, the respondents are hereby directed to forthwith release the goods in question and the Truck bearing registration no.GJ07UU7250 detained/seized under purported exercise of powers under sections 129 and 130 of the CGST Act. However, the petitioner shall file an undertaking before this Court within a week from today to the effect that in case the C/SCA/9897/2019 ORDER petitioner, ultimately, does not succeed in the petition, he shall duly cooperate in the further proceedings.
Stand over to 27.03.2019, so as to enable the respondents to file affidavitinreply, if any, in the matter. Direct service is permitted today.”
The vehicle bearing registration No.HR 38 Q 7370 as well as the goods, i.e. plywood, detained/seized under the purported exercise of powers under Sections 129 and 130 of the CGST Act shall be released immediately upon deposit of Rs.1.50 lakh with the concerned Department.
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 the returnable date, the learned Advocate General is requested to assist this Court in this particular matter. Direct Service is permitted.”
Pursuant to the notice issued under Section129 of the Act determining the amount to be paid towards the tax and liability, the requisite amount has been paid by the writapplicant and the conveyance and the goods have been released. It appears that later, a showcause notice came to be issued under Section 130 of the Act calling upon the writapplicant to showcause why the goods and conveyance should not be confiscated.
As the matter is now at the stage of MOV10, the writapplicant shall appear before the authority and file an appropriate reply to make good his case that the notice issued in GSTMOV10 deserves to be discharged. It shall be open for the writapplicant to place reliance on the recent pronouncement of this Court in the case of Synergy Fertichem Pvt. Ltd Vs. State of Gujarat [Special Civil Application No.4730 of 2019]. C/SCA/9897/2019 ORDER
With the above, this writapplication stands disposed of. Direct service is permitted. (J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) aruna
Reproduced from the public record of the Gujarat High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.