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2020 (3) TMI 357 - HC - GSTDetention of goods alongwith vehicle - Section 129(3) of the Central Goods and Services Tax Act, 2017 - detention on the premise that the consignment was not accompanied by invoice - compliance with the provisions of Rule 138(A) of the Central Goods and Services Tax Act, 2017 - requirement with the furnishing of Bank Guarantee - HELD THAT - Petitioner is not willing to pay the security in the form of bank guarantee equivalent to the amount of applicable tax, interest and penalty, without expressing any opinion on the merits as to strict applicability of Rule 138(A) or Rule 55 read with Section 129 or Rule 140. In my view, it is in the domain of the adjudicating authority. Since the goods are already lying seized with effect from 27.02.2020, the goods can be released on furnishing of Bank guarantee for the full amount as per provision of Section 129 of CGST Act, 2017 - the writ petition with a direction to the adjudicating authority to adjudicate the matter with regard to the goods being in compliance with the provisions of the Act or otherwise as expeditiously as possible.
Issues:
1. Detention of goods under Section 129(3) of the Central Goods and Services Tax Act, 2017. 2. Compliance of provisions of Rule 138(A) in works contract for the release of detained goods. 3. Dispute over the necessity of an invoice accompanying the consignment. 4. Requirement of security for the release of seized goods under Section 129 of the CGST Act, 2017. 5. Adjudication of compliance with the provisions of the Act by the adjudicating authority. Analysis: 1. The petitioner, a Private Limited company, entered into a works contract agreement with M/S Offshore Infrastructure Limited for a project with M/s.Bharat Petroleum Corporation Limited. Goods were detained by GST officers under Section 129(3) for not being accompanied by an invoice, which the petitioner argues is unnecessary per Rule 138(A) of the CGST Act, 2017. The petitioner offers to pay half of the bank guarantee and half indemnity bond for the release of the goods. 2. The State, represented by Dr. Tushara James, contends that compliance with Rule 138(A) is not straightforward in works contracts, citing Rule 55 and Schedule II of the Act, 2017, along with the definition of works contract under Section 2(119). Dr. James argues that a delivery challan alone is insufficient for works contract compliance. The State highlights the need for bank guarantee equivalent to the tax, interest, and penalty under Section 129(1)(b) and 129(1)(c) for provisional release of seized goods. 3. The court, after hearing both parties, refrains from expressing an opinion on the strict applicability of Rule 138(A) or other relevant provisions. The court deems it within the domain of the adjudicating authority to decide on the release of the seized goods. The court directs the adjudicating authority to adjudicate the matter concerning compliance with the Act's provisions promptly, preferably within 45 days from the receipt of the judgment copy, ensuring a fair hearing to all parties involved. Conclusion: The judgment emphasizes the need for a thorough adjudication of the compliance issues related to the detained goods, leaving the final decision to the adjudicating authority. The court's directive aims for a swift resolution of the matter within a specified timeframe, ensuring procedural fairness and adherence to the relevant provisions of the CGST Act, 2017.
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