2018 (8) TMI 1376 - HC - GST

Release of detained vehicle with goods - detention on the ground e-way bill was not tendered for the goods in movement, bill amount is under invoice and LR is blank - It was the case on behalf of the petitioner that the petitioner is ready and willing to pay taxes determined in accordance with law - Held that - When the petitioner is reported to be a habitual defaulter and tax evader and is found to be involved in atleast 10 cases wherein the petitioner was caught without e-way bills, this Court refuses to exercise discretion in favour of the petitioner - The modus operandi adopted by the petitioner is to transport the goods without e-way bill and as and when he is caught and the Truck is detained, he will make payment of tax and get the Truck released. Challenge to the impugned order passed under Section 129(3) of the Act - Held that - The same is appealable order and all the defences /contentions may be available to the petitioner as and when the appeal is preferred. Petition dismissed - decided against petitioner.

Summary

Issues: Challenge to the detention of Truck No. GJ-03-AZ-6473 for lack of e-way bill and under-invoicing, appealability of final order under Section 129(3) of the Central Goods and Services Tax Act, breach of principles of natural justice in passing the impugned order.

Analysis:

1. Detention of Truck and Goods: The petitioner sought release of Truck No. GJ-03-AZ-6473 detained for lack of e-way bill, under-invoicing, and blank LR. The final order of assessment under Section 129(3) of the CGST Act was passed during the petition's pendency, challenging the tax demand and penalty. The Department alleged the petitioner's habitual offense of transporting goods without e-way bills, citing 10 previous instances. The Court noted the petitioner's modus operandi of paying tax only when caught, refusing to release the truck.

2. Appealability of Final Order: The Department contended that the final order under Section 129(3) was appealable, suggesting the present petition should not be entertained. The petitioner argued the order lacked sufficient opportunity, breaching natural justice principles. The Court acknowledged the appealability of the order and the availability of defenses in an appeal, leading to the dismissal of the petition due to the existence of an alternative statutory remedy.

3. Breach of Principles of Natural Justice: The petitioner's counsel contended that the order under Section 129(3) was passed without adequate opportunity, violating principles of natural justice. However, the Court, after considering the petitioner's history of habitual default and tax evasion, refused to exercise discretion in favor of the petitioner. The Court emphasized the petitioner's repeated pattern of transporting goods without e-way bills, paying taxes only upon detention, and upheld the dismissal of the petition due to the availability of an appeal process and the petitioner's conduct.