2022 (1) TMI 1057 - HC - GST

Release of detained goods alongwith the vehicle - condition of furnishing the Bank Guarantee with bond - non-availability of E-way bill - registration of the recipient was being shown as suspended and that the goods had been undervalued - HELD THAT - The goods seized can be released under Sub-section (2) of Section 67 of the GST Act on a provisional basis upon execution of the bond and furnishing of the security and on payment of applicable tax, interest and penalty as the case may be. Section 129(2) of the GST Act provides for adopting of provision of Section 67(6) of the GST Act which says that the provision of Sub-section (6) of Section 67 shall mutatis mutandis apply for detention and seizure of goods and conveyance - The Court itself made it clear that there is a difference between Bond Bank Guarantee. It being a vital distinction between the bond and the Bank Guarantee, once the writ applicant executes a bond to the satisfaction of the authority, the authority concerned cannot insist for the Bank Guarantee. Since there is binding decision in this regard, the authority concerned instead of asking for the Bank Guarantee has insisted on furnishing of the security - It is quite clear that second option of furnishing the security for tax, interest and penalty, there will be no requirement for giving the bond in a case where the person has already made payment of tax, penalty and interest. The petitioner has already made payment of tax and penalty as well as furnished the bond and since the petitioner is unable to insist on the Bank Guarantee, when the requirement is of execution of the bond, to insist on the furnishing the security is something undesirable. The respondent is directed to release the goods and conveyance being No.KA-17-C-1451 since the bond has already been furnished as is required under the Rule - Petition allowed.

Summary

Issues Involved:
1. Non-availability of e-way bill.
2. Allegation of the buyer’s suspended registration.
3. Alleged undervaluation of goods.
4. Provisional release of goods and vehicle.
5. Requirement of furnishing a bond versus a bank guarantee.

Issue-wise Detailed Analysis:

1. Non-availability of e-way bill:
The petitioner, a proprietorship in Karnataka, received an order for arecanut from a buyer in New Delhi. The transporter commenced movement of goods without the e-way bill due to network issues and urgency. The truck was intercepted on 07.09.2021, and despite the driver producing the tax invoice and transport receipt with no quantity discrepancy, the goods were detained for the absence of an e-way bill.

2. Allegation of the buyer’s suspended registration:
On 10.09.2021, a detention order and confiscation notice were served, citing not only the missing e-way bill but also the buyer's allegedly suspended registration and undervaluation of goods. The petitioner pointed out an error in the authority's claim, asserting the buyer’s registration was active.

3. Alleged undervaluation of goods:
The petitioner contested the undervaluation allegation and requested provisional release of the goods and vehicle under Section 67(6) of the GST Act. Despite addressing these concerns and sending reminders, the respondent did not release the goods or drop the confiscation proceedings.

4. Provisional release of goods and vehicle:
The petitioner sought judicial intervention through Special Civil Application 14273 of 2021, resulting in a court directive to decide the provisional release application promptly. Despite this, the respondent delayed compliance, leading to another petition (Special Civil Application No.16493 of 2021). During its pendency, the respondent allowed provisional release upon payment of tax/penalty and furnishing a bank guarantee for the goods' value. The petitioner objected to the bank guarantee condition, referencing a precedent where only a bond was required.

5. Requirement of furnishing a bond versus a bank guarantee:
The petitioner argued that statutory provisions necessitated only a bond, not a bank guarantee, for provisional release. This stance was supported by the court's decision in Western Enterprises vs. State of Gujarat, which clarified the distinction between a bond and a bank guarantee. The court reiterated that a bond suffices without collateral security. Despite compliance by the petitioner, the respondent's insistence on additional security was deemed arbitrary and contrary to legal precedents.

Conclusion:
The court allowed the petition, directing the respondent to release the goods and vehicle since the petitioner had furnished the required bond. The respondent was instructed not to insist on further security, aligning with the statutory provisions and judicial precedents. The petitioner was also asked to provide asset details for potential bond recovery. The judgment emphasized adherence to legal requirements over arbitrary demands for collateral security.