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2019 (11) TMI 711 - HC - GSTDetention of goods alongwith the vehicle - Section 129 of GST Act - detention on the ground that the transport receipt was a photocopy and the details filled in the transport receipt were handwritten - case of petitioner is that, there being no format prescribed for transport receipt under the GST Acts, there was no question of there being any breach of the provisions of the GST Acts - Circular No.64/38/2018-GST dated 14.9.2018 - whether the second respondent was justified in exercising powers under section 129(1) of the CGST Act? HELD THAT - The documents which were required to be kept while transporting the goods are prescribed under rule 138A of the CGST Rules, 2017 - On a plain reading of the above rule, it is evident that the documents which are required to be kept by the person in charge of a conveyance while transporting goods are (i) the invoice or bill of supply or delivery challan, as the case may be; and (ii) a copy of the e-way bill - In the present case, admittedly when the trucks in question came to be intercepted, the concerned driver had produced the invoice as well as the eway bill in respect of the goods which were being transported. In order to ensure uniformity in the implementation of the provisions of the CGST Act across the field formations, the Central Board of Indirect Taxes and Customs in exercise of the powers conferred under section 168(1) of the CGST Act, has issued Circular No.41/15/2018-GST dated 13.4.2018, laying down the procedure for inspection of conveyance for inspection of goods in movement and detention, release and confiscation of goods and conveyances and has issued certain instructions - the instructions issued by the Board are binding upon all the officers discharging duties under the GST Acts. Though the person in charge of the conveyance had produced the documents which were statutorily required to be kept with him during the course of transportation of the goods, the vehicle in question was detained on extraneous grounds namely that the lorry receipt issued by the transporter was a photocopy without computerised serial number and contact number details - In terms of the instructions contained in the above circular dated 13 April, 2018, the proper officer, empowered to intercept and inspect a conveyance, may intercept any conveyance for verification of documents and/or inspection of goods. In the present case, since no FORM GST MOV-02 has been issued, no Part A of Form GST EWB-03 has been uploaded on the common portal, no FORM GST MOV-04 has been issued and no Part B of Form GST EWB-03 has been uploaded on the common portal, it is clear that the conveyance has been intercepted for verification of documents and not for physical verification inasmuch as, if the officer intended to undertake an inspection he was required to issue an order for physical verification/inspection of the conveyance, goods and documents in FORM GST MOV-02 and thereafter upload Part A of Form GST EWB-03 on the common portal, prepare a report in FORM GST MOV-04 and furnish the same to the petitioner and to upload the final report of the inspection in Part B of Form GST EWB-03 on the common portal. It is abundantly clear that both the documents prescribed under rule 138A of the CGST Rules, viz. the invoice and the e-way bill, were produced by the person incharge of the conveyance. The proper officer, upon verification of these two documents has not found any discrepancies therein. Hence, in terms of the instructions contained in paragraph 2(b) of the above circular, the proper officer was required to allow the conveyance to move further. However, the proper officer has issued an order of detention under section 129(1) of the CGST Act on the ground that the lorry receipt was a photocopy and did not bear a computerised serial number or contact number details - Thus, the impugned order has been passed contrary to the statutory requirements which do not require production of a lorry receipt by the person in-charge of a conveyance as well as contrary to the instructions issued by the Board in the above referred circular. Insofar as the second ground based on a subsequent socalled statement of driver of one of the conveyances bearing No.GJ-04-AT-9302 is concerned, it may be noted that such statement is said to have been recorded on 2.4.2019, wherein the driver has stated that he had loaded the goods at Sihor in Bhavnagar and was to unload them at Aurangabad - Thus, in the statutory form, the statement of the driver has been recorded stating that the goods were being transported from Bhavnagar to Virar, Thane, but the respondents seek to place reliance upon some unverified statement produced on record with the affidavit-in-reply, which is not permissible in law. Besides, there is force in the submission made by the learned advocate for the petitioner that the destination of the goods will have no bearing on the tax liability of the petitioner, provided the destination is outside the State of Gujarat and, therefore, no mala fide intention can be imputed to the petitioner as the petitioner as well as the recipient of goods, are registered under the GST Acts and both the invoice and e-way bill are found to be in order. It is evident that the person in-charge of the conveyance carrying the goods in question had in his possession, the invoice as well as the e-way bill in respect thereof, and both such documents were produced before the proper officer when the conveyance in question came to be intercepted. It is not the case of the respondents that any discrepancy was found in the aforesaid two documents - Under the circumstances, in the light of the instructions contained in Circular dated 13.4.2018 issued by the Board, it was incumbent upon the second respondent to issue a release form in FORM GST MOV-05 and allow the conveyance to move further - However, the conveyance in question has been detained on the ground of discrepancy in transport certificate which is not a requirement prescribed under the statute. Under the circumstances, the second respondent was not justified in passing the order of detention under section 129(1) of the CGST Act. The impugned orders of detention dated 2.4.2019 as well as the impugned notices dated 2.4.2019 in each of the petitions, are hereby quashed and set aside - Petition allowed.
Issues Involved:
1. Legality of detention/seizure under Section 129 of the GST Acts. 2. Compliance with procedural requirements under the GST Acts. 3. Validity of grounds for detention (photocopy of transport receipt and handwritten details). 4. Relevance of subsequent grounds raised in the affidavit-in-reply. 5. Applicability of Circular No. 64/38/2018-GST dated 14.9.2018. 6. Requirement of GST registration for specific commodities. 7. Legal implications of driver's statements regarding the destination of goods. Detailed Analysis: 1. Legality of Detention/Seizure under Section 129 of the GST Acts: The petitioner argued that the detention/seizure of the truck with goods under Section 129 of the GST Acts was "wholly without jurisdiction, arbitrary and illegal." The petitioner had complied with all procedural requirements, including the preparation of a tax invoice, generation of an e-way bill, and possession of a transport receipt. The court noted that the truck was detained on the grounds that the transport receipt was a photocopy and had handwritten details, which were not stipulated as mandatory under the GST Acts. 2. Compliance with Procedural Requirements under the GST Acts: The petitioner had complied with the procedural requirements for the movement of goods under the GST Acts, including the preparation of the tax invoice, generation of the e-way bill, and possession of the transport receipt. The court found that the petitioner had adhered to the necessary procedures and that the detention was based on extraneous grounds not required by the statute. 3. Validity of Grounds for Detention (Photocopy of Transport Receipt and Handwritten Details): The court found that the detention of the truck on the grounds that the transport receipt was a photocopy and had handwritten details was not justified. The GST Acts did not prescribe any specific format for the transport receipt, and the petitioner had explained that it was common practice to send scanned copies of the transport receipt, which were then filled and signed by the authorized representative of the transporter. The court held that there was no breach of the GST Acts in this regard. 4. Relevance of Subsequent Grounds Raised in the Affidavit-in-Reply: The respondents raised new grounds in their affidavit-in-reply, including that the petitioner had not obtained GST registration for the commodities being transported and that the driver had stated that the goods were being transported from Sihor to Aurangabad. The court, citing the Supreme Court's decision in Mohinder Singh Gill v. Chief Election Commissioner, held that the validity of an order must be judged by the reasons mentioned in the order itself and cannot be supplemented by fresh reasons in the affidavit. The court found these additional grounds to be irrelevant and not permissible for consideration. 5. Applicability of Circular No. 64/38/2018-GST dated 14.9.2018: The petitioner referred to Circular No. 64/38/2018-GST, which provided that proceedings under Section 129 of the CGST Act should not be initiated in certain situations, such as minor errors in the invoice or e-way bill. The court noted that the instructions issued by the Central Board of Indirect Taxes and Customs under Section 168 of the CGST Act are binding on the officers and must be followed. The court found that the detention was contrary to the instructions in the circular. 6. Requirement of GST Registration for Specific Commodities: The respondents contended that the petitioner was not registered for the commodities being transported. The court found that the GST registration form (FORM GST REG-01) only required the top five commodities to be specified and that there was no provision mandating registration for each specific commodity. The court held that the petitioner was not in breach of any provision of the GST Acts by transporting goods not specified in the registration form. 7. Legal Implications of Driver's Statements Regarding the Destination of Goods: The respondents relied on the driver's statement that the goods were being transported from Sihor to Aurangabad. The court noted that the statutory form (FORM GST MOV-01) recorded the driver's statement that the goods were being transported from Bhavnagar to Virar, Thane. The court found that the destination of the goods had no bearing on the tax liability provided the destination was outside the State of Gujarat. The court held that the driver's statement did not justify the detention of the goods. Conclusion: The court concluded that the detention of the truck with goods under Section 129 of the GST Acts was not justified and was based on extraneous grounds not required by the statute. The court quashed the impugned orders of detention and notices issued under Section 129 of the GST Acts and allowed the petitions.
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