2019 (4) TMI 147 - HC - GST

Confiscation of goods - GST VIG-10 issued u/s 130(1), (2) and 122 (1)(ii) and (iv) of the Central Goods and Service Tax Act, 2017 - It is the contention of the petitioners that the respondent has detained the goods and vehicle illegally for more than a month, in violation of the procedure prescribed by the Government of India through Circulars and confiscated the goods and vehicle without there being any order of confiscation or there being arrears of tax and penalty - section 129 of CGST Act. Held that - Where the proper officer is of the opinion that the goods and conveyance need to be detained under Section 129 of the CGST Act, he shall issue an order of detention in Form GST MOV-06 and a notice in form GST MOV-07 in accordance with the provisions of Sub-section (3) of Section 129 of the CGST Act, specifying the tax and penalty payable. The notice shall be served on the person in charge of the conveyance - In terms of clause (j), where any objections are filed against the proposed amount of tax and penalty payable, the proper officer shall consider such objections and thereafter pass a speaking order in Form GST MOV-09, quantifying the tax and penalty payable. On payment of such tax and penalty, the goods and conveyance shall be released forthwith by an order in Form GST MOV 05 - As per clause (k), in case the proposed tax and penalty are not paid within seven days from the date of the issue of the order of detention in Form GST MOV-06, action under section 130 of the CGST Act shall be initiated, proposing confiscation of the goods and conveyance and imposition of penalty. In the present set of facts, it is not in dispute that the notice under Section 129(1)(b) of CGST/KGST Act, 2017 was issued by the respondent on 2.01.2019, to which objections were filed by the petitioners. In such circumstances, it was incumbent on the part of the respondent to consider the said objections and pass a speaking order quantifying the tax and penalty and thereafter to release the goods subject to payment of tax and penalty or to confiscate the goods. However, the respondent considering the objections filed by the petitioners proceeded to pass the impugned order of confiscation of goods and conveyance under Section 130(1)(ii) r/w 122(1)(ii) and (iv) of the CGST Act, whereby penalty and fine payable by the petitioner is quantified - reference made by the learned HCGP to Section 160 of the CGST Act to treat the said impugned order as an order of penalty cannot be countenanced for the reason that it is not mere wrong quotation of provisions of law in passing the order impugned but the procedure prescribed is disturbed. It is well settled law that unless the tax and penalty are quantified, no confiscation order could be passed. It is necessary to provide an opportunity to the owner of the goods or person incharge of the goods vehicle to make payment of tax and penalty subsequent to the objections filed, if any. Without providing such an opportunity, proceeding to pass confiscation order directly would not be construed as any mistake, defect or omission to come within the ambit of Section 160 of the CGST Act. It is a fundamental flaw which goes to the root of the matter and the said lacuna cannot be cured by referring to Section 160 of the CGST Act. This Court deems it appropriate to quash the order impugned and restore the notice issued by the respondent under Section 129(1)(b) of the Act, albeit the said notice is withdrawn by the respondent while passing the order impugned.

Summary

Issues:
Challenge to confiscation order under CGST Act - Illegal detention of goods and vehicle - Unilateral presumption by respondent - Violation of procedure prescribed by Government of India - Quoting wrong provision of law - Confiscation order without quantifying tax and penalty - Consideration of objections filed by petitioners - Proper officer's duty to pass speaking order - Fundamental flaw in passing confiscation order - Quashing of impugned order - Restoration of penalty notice - Expedite consideration of objections and quantification of tax and penalty.

Analysis:
The petitioners challenged a confiscation order issued by the respondent under Sections 130(1), (2), and 122(1)(ii) and (iv) of the CGST Act, claiming it to be illegal. They argued that the respondent detained the goods and vehicle for over a month without any order of confiscation or arrears of tax and penalty, violating prescribed procedures. The respondent suspected fraudulent tax invoices without evidence and passed a confiscation order without considering objections, leading to the petitioners seeking relief to set aside the illegal order.

The respondent, represented by the HCGP, defended the order, citing a mistake in quoting the penalty provision but contending that the penalty quantified was valid under Section 129 of the CGST Act. It was argued that any mistakes in orders are not invalid under Section 160 of the Act if they align with the Act's intent. The respondent also alleged the consignor's involvement in bill trading activities, justifying the confiscation order as a penalty order, warranting dismissal of the writ petitions.

The court examined the relevant provisions of the CGST Act concerning detention, seizure, release of goods, and confiscation. It highlighted the necessity for the proper officer to issue a notice specifying tax and penalty payable, consider objections, and pass a speaking order quantifying tax and penalty before confiscation. The court emphasized that passing a confiscation order without quantifying tax and penalty, as in this case, was a fundamental flaw not curable under Section 160 of the Act, especially given the prescribed procedures in Circulars by the Government of India.

Ultimately, the court quashed the impugned confiscation order and restored the penalty notice, directing the respondent to consider objections, quantify tax and penalty, and release goods upon payment. The court stressed the importance of following due process, especially in the early stages of the GST regime, and ordered an expedited resolution within seven days. The judgment aimed to rectify the procedural errors and ensure compliance with statutory requirements in confiscation cases under the CGST Act.