2018 (8) TMI 281 - HC - GST

Appealable Order - non establishment of the Appellate Tribunal - Section 112 of the CGST Act - Seizure proceedings - detention of vehicle - Inter- State transaction - Held that - This issue is now serious as because of non establishment of the Tribunal, the parties are unnecessarily approaching this Court whereas, in case of establishment of Tribunal they can easily file the appeal under Section 112 of the Act - Issue notice to the newly added respondent nos. 3 and 4, Union of India and Goods & Service Tax Council to explain as to why the previous orders of this Court are not complied with and as to why the statutory Tribunal is not setup so far. This explanation must be furnished within two weeks by the respondents. In the instant case, on account of non establishment of the Appellate Tribunal, the dealers or the parties aggrieved are approaching the High Court. The respondents must proceed forthwith in this regard - since the petitioner is a registered company and the purchaser is a Government of India Enterprise, this Court finds it proper and appropriate to protect the interest of parties. The goods are directed to be released on furnishing an indemnity bond to the extent of the value of tax only and not the penalty amount, so as indicated in the impugned seizure order passed under Section 129 (3) - The goods seized along with vehicle be released forthwith - The petitioner be permitted to download a fresh E-way bill immediately after release of the goods and vehicle.

Summary

Issues:
1. Validity of seizure proceedings under UP GST Act.
2. Applicability of appeal under Section 112 of the CGST Act.
3. Establishment of the Tribunal under Section 113 of the CGST Act.
4. Non-compliance with previous court orders regarding Tribunal establishment.

Validity of Seizure Proceedings under UP GST Act:
The petitioner argued that the seizure proceedings were invalid and lacked legal authority. The counsel highlighted the necessity of using specific Government Orders and forms during seizure proceedings and vehicle detention. It was contended that since it was an Inter-State transaction, the actions taken under the UP GST Act were deemed illegal. The petitioner explained that the transporter's failure to download part-B of the E-way bill was a human error, rectified promptly after the vehicle's detention. Despite providing all necessary details regarding the goods' destination and purpose, the detaining authority proceeded to seize the goods and issue a notice under Section 129 (3) of the CGST Act.

Applicability of Appeal under Section 112 of the CGST Act:
The petitioner raised concerns about the absence of a constituted Tribunal for appeals under Section 112 of the CGST Act, leading to the challenge of the proceedings under Article 226 of the Constitution of India. The Additional Commissioner (Appeals) affirmed the seizure and penalty orders, prompting the petitioner to file a writ petition. The court emphasized the importance of the Tribunal's establishment to streamline the appeal process and reduce unnecessary court interventions.

Establishment of the Tribunal under Section 113 of the CGST Act:
The court expressed disappointment over the delay in establishing the Tribunal despite previous orders and emphasized the need for a functional Tribunal to address appeals effectively. The court highlighted the procedural provisions under Sections 113, 114, and 117 of the CGST Act related to the Appellate Tribunal's functioning and the subsequent appeal process to the High Court.

Non-compliance with Previous Court Orders Regarding Tribunal Establishment:
The court issued notice to the Union of India and Goods & Service Tax Council to explain the non-compliance with previous court orders regarding the establishment of the Tribunal within two weeks. The court stressed the significance of the Tribunal's establishment to prevent unnecessary court interventions and ensure a proper appellate process. In light of the petitioner being a registered company with the purchaser being a Government of India Enterprise, the court ordered the release of goods on furnishing an indemnity bond for the tax value only, allowing the immediate release of the seized goods and vehicle, and permitting the petitioner to download a fresh E-way bill for onward journey documentation. The court scheduled the next hearing for further proceedings.