M/S Bharat Vijay Transport Co. vs. State Of Gujarat
Original PDF →Facts
The petitioner, M/s Bharat Vijay Transport Co., filed a Special Civil Application challenging an order dated 02/01/2019 passed by respondent no. 3. The petitioner sought quashing of this order, release of their truck (No. GJ 01 BY 5326) detained on 02/01/2019, and compensation for detention. The truck was carrying goods under 31 bills and lorry receipts. While most goods were released, two lorry receipts issued to M/s Standard Sales Corporation involved GSTN obtained using another person's documents. The petitioner argued that the authorities were penalizing the transporter instead of tracing the actual culprits. A co-ordinate bench, while admitting the matter, noted that the impugned order of confiscation under Section 130 of the GST Act was passed without applying its mind to the petitioner's objections and perfunctorily.
Held
The Court held that the impugned order dated 02/01/2019, passed under Section 130 of the State Goods and Services Tax Act, 2017, was indeed passed without proper application of mind and without considering the objections raised by the petitioner. The Court found that the authorities had not applied their mind to the objections raised by the petitioner and had perfunctorily passed the order confiscating the conveyance. Consequently, the Court quashed and set aside the impugned order. The Court clarified that the respondent authority could still invoke Section 130 of the Act if any material was found against the petitioner. The petition was disposed of with this direction, and the rule was made absolute to the extent of quashing the impugned order.
Key Issues
1. Whether the impugned order dated 02/01/2019, passed under Section 130 of the State Goods and Services Tax Act, 2017, is liable to be quashed and set aside for being passed without considering the objections raised by the petitioner and without application of mind? Petitioner's Arguments: The petitioner contended that the impugned order was passed without proper application of mind and failed to consider their objections. They argued that the authorities were wrongly penalizing the transporter instead of pursuing the actual offenders who had obtained GST registration fraudulently. The petitioner relied on the fact that they were engaged for transportation with valid invoices and e-way bills, and had no reason to doubt the person who engaged them. Revenue's Arguments: The judgment does not record any specific arguments made by the revenue or state respondents during the final hearing. However, the initial order dated 3rd May, 2019, indicates that the respondents sought to penalize the transporter and recover tax, penalty, and fine from them.
Sections Cited
Section 130
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL ORDER (PER : HONOURABLE MR.JUSTICE BHARGAV D. KARIA)
By this petition, under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs: “(A) This Hon’ble Court will be pleased to admit and allow this petition; (B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order passed by the respondent no.3 on 02/01/2019. (C) Pending admission and final disposal of the present petition, be pleased to direct the respondents to pass appropriate order, releasing the Truck No. GJ 01 BY 5326 detained on 02/01/2019 immediately without any direction of payment / security etc. (D) To issue a writ of Mandamus or any C/SCA/5378/2019 ORDER other writ order or direction, directing the State Government to pay damarge / detention charges of truck which is seized for more than two months without any fault on the part of the petitioner. (E) Be pleased to pass such other and further orders as may be deemed fit and proper.”
By order dated 3rd May, 2019, a co-ordinate Bench of this Court has passed the following order:
“1. Heard Mr. Varis Isani, learned advocate for the petitioner and Mr. Soaham
Joshi,
learned
Assistant Government Pleader for the respondents.
In this case when the conveyance in question was apprehended it was carrying goods under 31 bills and lorry receipts, out of which in case of 22 bill and lorry receipts the goods were released immediately; in case of nine defective bills and lorry receipts, seven of the concerned tax payers had paid the tax and penalty, pursuant to which the goods were released. It is in case of only two lorry receipts viz. No. 155609 and 155616 issued to M/s Standard Sales Corporation that the owner of the goods has not turned up for getting the goods released and upon inquiry it is found that the GSTN stated in the e-way bill etc. have been obtained on the basis of the adhar card, PAN and mobile number of one Mahendrabhai Venilal Solanki who had permitted one Vipulbhai to use such documents for obtaining GST registration upon payment of some amount to him. However, though the statement of Mahendrabhai has been recorded in January, 2019 no criminal proceedings have been instituted against him nor has any complaint been filed before the police in respect of such offence. No steps have been taken against the said Mahendrabhai under section 122(xxii) of the Central Goods and Services Tax Act, 2017/Gujarat Goods and Services Tax Act, 2017. C/SCA/5378/2019 ORDER
Admittedly the goods were being transported under an invoice and e-way bill bearing a valid GSTN. It appears that such GSTN has been given without proper inquiry as contemplated under the Act and the rules, which is on account of default on the part of the concerned authorities. However, it appears that instead of tracing out the real culprit, the respondents are seeking the easy way out by penalising the transporter who prima facie does not appear to have doubted the person who engaged it for transport of the goods as an invoice and e-way bill were produced by him, and recovering the tax, penalty and fine from him.
On a perusal of the order of confiscation made under section 130 of the Goods and Services Tax Act, 2017 read with the relevant provisions of the State Goods and Services Tax Act/ integrated Goods and Services Tax Act, it is evident that the authority concerned has not applied its mind to the objections raised by the petitioner and has perfunctorily passed the impugned
order
confiscating
the conveyance of the petitioner.
In the aforesaid premises the petitioner has made out a strong prima facie case for grant of interim relief. Under the circumstances, Issue Rule returnable on 19th June, 2019. By way of interim relief, the respondents are directed to forthwith release the conveyance being Truck No.GJ-01-BY-5326 of the petitioner, subject to a responsible partner of the petitioner firm filing an undertaking before this court, within a period of two days from today, that in the event the petitioner fails in the petition or is otherwise found to be liable under the CGST/GGST Act, the petitioner shall forthwith discharge
such liability
without prejudice to its rights to challenging such order before the appropriate forum. Direct service is permitted.” C/SCA/5378/2019 ORDER
Pursuant to the aforesaid order, passed by this Court, it is reported that the goods and conveyance, bearing Truck No.GJ 01 BY 5326, are already released on filing an undertaking by the responsible partner of the petitioner.
Heard learned advocates appearing for the respective parties.
Considering the material on record it appears that this Court, while admitting the matter, found that the impugned order dated 02.01.2019, passed under Section 130 of the State Goods and Services Tax Act, 2017 (for short ‘the Act’), is without any reason and the same is passed without considering the objections raised by the petitioner.
In view of such fact, the impugned order, passed under Section 130 of the Act, is hereby quashed and set aside. However, we make it clear that the respondent authority can invoke Section 130 of the Act, if any material is found against the petitioner.
With the aforesaid direction, the petition is disposed of. Rule is made absolute to the aforesaid extent. (J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) PALAK
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.