2021 (4) TMI 551 - Commissioner - GST

Maintainability of appeal - time limitation of filing appeal - period of appeal as prescribed under Section 107(2) of CGST Act,2017 - levy of penalty u/s 129(1)(a) of CGST Act, 2017. Whether the appeal filed by the appellant is beyond the period of appeal or not as prescribed under Section 107(2) of CGST Act,2017? - HELD THAT - The appeal has been filed by the appellant or department in accordance with the Notification No.55/2020-Central Tax dated 27.06.2020 amending Notification No.35/2020-Central Tax dated 03.04.2020. By the said Notification, the period for filing of appeal has been extended upto 31st December-2020 which is squarely applicable in the instant case. In view of this, there is no force in the contention of the respondent that the appeal has been filed beyond the period of appeal and therefore appeal is absolutely maintainable. L evy of penalty u/s 129(1)(a) of CGST Act, 2017 - HELD THAT - In the instant case, it is fact on record that the owner of the goods failed to come forward for releasing of the detained goods and the goods were got released by the Transporter of the conveyance. Therefore, in terms of Section 129 (1) (b) of CGST Act, 2017, detained goods has to be released on payment of the applicable tax and penalty equal to the fifty per cent of the value of the goods reduced by the tax amount paid thereon whereas, in the instant case, the owner of the goods does not come forward to pay tax and penalty - In the instant case, penalty should have been imposed by the adjudicating authority equal to the fifty per cent of the value of the goods reduced by the tax amount paid thereon, whereas, adjudicating authority has imposed penalty equal to 100% per cent of the tax payable on the detained goods which is not proper and correct. In the instant case value of the goods is ₹ 1,23,312/- therefore, penalty is stands modified to ₹ 61,656/- under clause (b) of sub section (1) of Section 129 of CGST Act, 2017 and the penalty already deposited by the respondent may be appropriated accordingly. Appeal allowed in part.

Summary

Issues:
1. Appeal filed beyond the prescribed period under Section 107(2) of CGST Act, 2017.
2. Proper imposition of penalty under Section 129(1)(a) of CGST Act, 2017.

Analysis:

Issue 1:
The appeal was filed by the department beyond the six-month period from the date of the Order in Original. However, the appeal was filed in accordance with Notification No.55/2020-Central Tax, extending the filing period up to 31st December 2020. Thus, the contention that the appeal was filed beyond the period is dismissed, and the appeal is deemed maintainable.

Issue 2:
The respondent argued that due to logistical constraints, he was authorized by all owners of the goods to act on their behalf during the release process. The respondent submitted an affidavit supporting this claim. The Adjudicating Authority had erroneously imposed a penalty under Section 129(1)(a) instead of Section 129(1)(b) of the CGST Act, resulting in an incorrect penalty amount. The relevant provision states that goods should be released on payment of tax and penalty equal to fifty percent of the value of the goods under Section 129(1)(b) if the owner does not come forward to pay. As the actual owners did not come forward, the penalty should have been reduced accordingly. The imposed penalty of 100% was deemed incorrect. The respondent's plea for leniency due to COVID-related financial crisis was not considered as there are no provisions for such leniency under the CGST Act. Therefore, the appeal was allowed, modifying the penalty to 50% of the value of the goods, amounting to ?61,656, and the penalty already deposited by the respondent was to be adjusted accordingly.

This detailed analysis of the judgment addresses the issues raised and provides a comprehensive understanding of the legal reasoning and conclusions reached by the Commissioner (Appeals) in this case.