9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 552 - HC - GSTLegality of orders of detention passed by the respondents - detention of goods and vehicles - scope and ambit of the orders passed by the proper officer in Form GST MOV-6 and Form GST MOV-9 respectively - HELD THAT - The procedure to be sequentially followed from the stage of recording the statement of the driver in Form GST MOV-1 to the stage of issuing an order in Form GST MOV-6 detaining the goods, is for the purpose of determining whether the goods were being transported, or stored during transit, in contravention of the provisions of the Act and Rules. The proper officer is required to apply his mind to the statement given by the driver of the vehicle, as also other documents produced by or on behalf of the owner of the goods or conveyance, to determine whether a contravention of the statutory provisions has indeed been occasioned. It is only if he is satisfied of such contravention, based on the material before him, that he must proceed to pass the order of detention in Form GST MOV-6. If there is no material to come to such a conclusion, he has to issue a release order in Form GST MOV-5 and permit an unconditional clearance of the goods and vehicle. At all the above stages, the proper officer is also required to strictly adhere to the time limits prescribed in the circulars issued from time to time so that the goods are not detained for a period longer than that permitted under the statute - Since the statutory provisions and the circulars envisage the service of a notice in Form GST MOV-7, simultaneous with the issuance of a detention order in Form GST MOV-6, the 'non-finality' of the latter order is statutorily recognised and hence, it will not be open to the person concerned to prefer any statutory appeal or writ petition against the said order in Form GST MOV-6. The person served with an order in Form GST MOV-6, together with a notice in Form GST MOV-7, has the option of either paying the amounts demanded in the notice and clearing the goods or contesting the matter by preferring his objections to the proposals contained in the notice. In the former event, on receipt of the payment from the person concerned, the proper officer has merely to regularize the payment by passing an order in Form GST MOV-9 confirming the proposal in the notice. The proper officer shall bear in mind the statutory provisions that provide for an appeal against an order passed under Section 129 (3) of the Act and accordingly, refrain from invoking the bank guarantee furnished by the person concerned for a period of three months from the date of service of the order in Form GST MOV-9, so that the appellate remedy available to the person concerned is not rendered illusory. Whether a mis- classification of the goods can be the basis for a detention under Section 129 of the GST Act? - HELD THAT - A mere suspicion of mis-classification of goods cannot be the basis for a detention under Section 129 of the Act. It has to be borne in mind that Section 129 forms part of the machinery provisions under the Act to check evasion of tax and a detention can be justified only if there is a contravention of the provisions of the Act in relation to transportation of goods or their storage while in transit. No doubt, it may be open to an inspecting authority to detain goods if there is a patent mis-description of the goods in the transportation documents, to such an extent that it can only be seen as referring to an entirely different commodity. Such instances, however, must necessarily be confined to glaring mis-descriptions such as 'Apples' being described as 'Oranges' or 'Coconuts' being described as 'Betel Nuts', where the two goods can never be perceived as the same by ordinary persons endowed with reasonable skills of cognition and comprehension. Section 129 of the Act, if a proper officer who is entrusted with the task of detaining goods, finds that they have been transported in contravention of the rules, he does not have the discretion to condone the procedural lapse or relax its rigour in particular cases. He must interpret the Rule strictly keeping in mind the statutory scheme that aims to curb tax evasion. In as much as the adjudication that is expected of him is a summary one, he can do no more than determine whether or not on a literal reading of the statutory provisions, together with the circulars issued from time to time, there has been a breach occasioned thereof. Any person aggrieved by the order of the proper officer must necessarily approach the appellate authority before which an appeal against the adjudication order under Section 129 (3) of the Act is maintainable. In the instant case too, the remedy of the petitioner is to approach the appellate authority under the Act against the finding of the proper officer. The petitioner is relegated to his alternate remedy of preferring appeals against the said adjudication orders before the appellate authority under the Act - there are no reason to interfere with the adjudication orders in Form GST MOV-9 impugned in the writ petition - petition disposed off.
Issues Involved:
1. Legality of detention orders passed under the GST Act. 2. Mis-classification of goods as a basis for detention. 3. Procedural lapses in transportation documents. Detailed Analysis: Legality of Detention Orders Passed Under the GST Act: The court addressed the common challenge to the legality of detention orders passed by the respondents under the GST Act. It emphasized that writ petitions challenging detention orders should not be ordinarily entertained as the GST Act provides an alternate remedy through provisional clearance and appeal. The Supreme Court in State of Uttar Pradesh v. Kay Pan Fragrance Pvt. Ltd. reiterated that writ petitions for the release of seized goods should not be entertained as the Act provides a complete mechanism for release and disposal of seized goods. Mis-classification of Goods as a Basis for Detention: The court examined whether mis-classification of goods could justify detention under Section 129 of the GST Act. It concluded that a mere suspicion of mis-classification cannot be the basis for detention. The court referred to previous judgments, including NVK Mohammed Sulthan Rawther & Sons v. UOI & Ors and M/s Synergy Fertichem Private Limited v. State of Gujarat, which held that detention cannot be resorted to in cases of bona fide disputes regarding classification. The court stated that only glaring mis-descriptions, such as 'Apples' being described as 'Oranges,' could justify detention. In W.P(C).No.17379 of 2020, the petitioner was transporting fruit drinks described as 'fruit drinks' in the invoices and e-way bills. The goods were detained on the ground that they were actually 'aerated soft drinks with added flavors.' The court found that the alleged mis-classification did not amount to a mis-description justifying detention and quashed the detention orders. In W.P(C).No.22608 of 2020, the petitioner was transporting 'Pappad's' described as exempted goods under HSN code 1905. The goods were detained on the ground that they were 'un-fried fryums' classifiable under HSN code 21069099. The court found that the alleged mis-classification did not justify detention. However, the detention was sustained on the ground that the e-way bill was not valid due to incomplete details. The petitioner was directed to approach the appellate authority for further redressal. Procedural Lapses in Transportation Documents: The court also addressed procedural lapses in transportation documents. In W.P(C).No.22072 of 2020, the petitioner was transporting power cable end termination kits with a single invoice for two consignments. The goods were detained due to the absence of separate delivery chalans for each vehicle as required under Rule 55 (5) of the CGST Rules. The court held that the proper officer does not have the discretion to condone procedural lapses and must interpret the rules strictly. The petitioner was directed to approach the appellate authority for redressal. Conclusion: The court quashed the detention orders based on mis-classification in W.P(C).No.17379 of 2020 and partially in W.P(C).No.22608 of 2020. However, it sustained the detention in W.P(C).No.22072 of 2020 and partially in W.P(C).No.22608 of 2020 due to procedural lapses. The court emphasized the need to approach the appellate authority for challenging adjudication orders under Section 129 (3) of the GST Act. The writ petitions were disposed of with directions to the respondents to return the bank guarantees furnished by the petitioners and to refrain from invoking the bank guarantees for a specified period to allow the petitioners to seek appellate remedies.
|
