2021 (12) TMI 779 - HC - GST

Seeking release of conveyance with goods - since the Tribunal has not yet been constituted in the State of U.P., so this writ petition has been preferred - Section 129 (1) (a) of IGST/CGST Act - HELD THAT - The matter requires consideration. Giving the circumstances of the present case, this case is not a fit case to issue an interim order at this stage.

Summary

Issues:
1. Interpretation of Section 129 (1) (a) of the IGST/CGST Act regarding determination of tax and penalty.
2. Validity of the impugned order dated 18.10.2021 passed by the Additional Commissioner, Grade-2 (Appeal)- 6, State Tax, Kanpur.
3. Dispute over the pricing of goods and the requirement of E-way bill.
4. Application of Section 15 of the Act and Explanation No. 2 of Rule 138 of the CGST Rules in the assessment.

Analysis:

1. The judgment revolves around the interpretation of Section 129 (1) (a) of the IGST/CGST Act concerning the determination of tax and penalty. The impugned order held the appellant as the owner of the goods, resulting in the imposition of tax and penalty under this provision for the release of the conveyance and goods. The petitioner argues that the pricing of goods is at the discretion of the supplier, emphasizing that there is no restriction on pricing in the Act. Additionally, the non-issuance of an E-way bill due to the low value of goods is highlighted to counter allegations of under-invoicing.

2. The validity of the order dated 18.10.2021 passed by the Additional Commissioner, Grade-2 (Appeal)- 6, State Tax, Kanpur is questioned in the judgment. The petitioner challenges the assessment conducted under Section 129 (1) (a) and seeks relief through a writ petition due to the absence of a constituted Tribunal in the State of U.P. The court acknowledges the need for further examination of this matter.

3. A dispute arises regarding the pricing of goods and the necessity of an E-way bill. The petitioner asserts that the supplier has the autonomy to set prices without statutory constraints. Conversely, the respondent cites Section 15 of the Act in conjunction with Explanation No. 2 of Rule 138 of the CGST Rules to support the assessment conducted under Section 129 (1) (a). This discrepancy forms a crucial aspect of the case that requires thorough evaluation.

4. The application of Section 15 of the Act and Explanation No. 2 of Rule 138 of the CGST Rules is pivotal in determining the validity of the assessment under Section 129 (1) (a). The arguments presented by both parties center on the interpretation and application of these statutory provisions to justify their respective positions. The court grants time for the filing of a counter affidavit and subsequent rejoinder to delve deeper into the legal intricacies involved in this matter, indicating the complexity and significance of the issues at hand.