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TMI Blog2018 (4) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... cases of inter-State trade in violation of section 20(xv) of I.G.S.T. Act 2017. Petition allowed - decided in favor of petitioner. - Misc. Bench No. 5536 of 2018 - - - Dated:- 13-4-2018 - Hon'ble Prashant Kumar And Hon'ble Rajan Roy, JJ. For the Petitioner : Pradeeo Agrawal For the Respondent : C.S.C.,A.S.G., Dr Deepti Tripathi ORDER ( Per: Rajan Roy, J. ) Heard Sri Pradeep Agarwal, learned counsel for the petitioner, Sri Rahul Shukla, learned Addl. C.S.C. for the opposite party nos.1, 3 and 4, Dr. Deepti Tripathi, learned counsel for the opposite party no.2. This is a writ petition under Article 226 of the Constitution of India seeking a writ of certiorari quashing the orders of seizure under section 129(1) as well as imposition of tax and penalty under section 129(3) of the U.P. Goods and Services Tax Act 2017 (hereinafter referred as ''U.P.G.S.T. Act 2017'). A preliminary objection was raised by Sri Rahul Shukla, learned Addl. Chief Standing Counsel appearing for the State, on the ground of availability of a statutory remedy of appeal before the Addl. Commissioner, Grade II (Appeal) under section 107 of the U.P.G.S.T. Act 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 20 (xv) thereof, in matters of inspection, search, seizure and arrest, provisions of the Central Goods and Services Tax Act 2017 (hereinafter referred ''C.G.S.T. Act 2017') were applicable. As per section 68 of the C.G.S.T. Act 2017, inter alia, Government may require, the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified, to carry with him such documents and such devices as may be prescribed. This prescription is contained in Rule 138 of the Central Goods and Services Tax Rules 2017 (hereinafter referred as ''C.G.S.T. Rules 2017'), but, no notification had been issued by the Central Government under the said rule specifying the documents that a person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage, therefore, the rule was practicallty inoperative and there was no requirement of carrying any such document on the relevant date i.e. 17.12.2017. The invoice and other documents which were being carried were sufficient for the purpose of transportation, especially as, they revealed that it was an inter-State suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter-State Trade or Commerce and in respect of it tax, as aforesaid, would be levied and collected by the Government of India. In pursuance to the aforesaid 101st Amendment of the Constitution three enactments were passed by the Parliament, i.e. the Integrated Goods and Services Tax Act 2017; the Central Goods and Services Tax Act 2017; the Union Territory Goods and Services Tax Act 2017 (hereinafter referred as ''U.T.G.S.T. Act'). In addition to the aforesaid three enactments, the Legislature of the State of Uttar Pradesh passed an enactment known as the ''U.P.G.S.T. Act 2017'. In matters of inter-State Trade and Commerce including import into the territory of India and out of it, the I.G.S.T. Act 2017 applies, whereas, in matters of intra-State trade and commerce the ''C.G.S.T. Act 2017' and the State Goods and Services Tax Acts, which in this case is ''U.P.G.S.T. Act 2017', apply. Section 3 of the I.G.S.T. Act 2017 provides that the Board may appoint such Central Tax Officers as it thinks fit for exercising powers under this Act. There is no dispute about the fact that by virtue of section 4 of the I.G.S.T. Act 2017 the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage. As would be evident from a reading of the aforesaid rule it refers to an E-way bill System which is to be developed by the G.S.T. Council and it provides for an interim arrangement by the Government till an E-way Bill System is so developed and approved. The words Government used therein is defined in section 2(53) of C.G.S.T. Act 2017 to mean the Central Government . It is not in dispute that on the date of interception of the vehicle in question E-way Bill System had not been developed, therefore, the documents which were required to be carried during movement of any consignment of goods were those which may have been notified by the Central Government under Rule 138 of the C.G.S.T. Rules 2017, as, by virtue of section 20(xv) thereof, it is this rule which is applicable to matters pertaining to I.G.S.T. Act 2017. Neither the State of U.P. nor the Government of India has brought on record any such notification which may have been issued prescribing the relevant documents to be carried in the course of such movement as is referred in section 68 of the C.G.S.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Central Government', just as, under section 2(9) of the I.G.S.T. Act 2017 ''Government' means '' the Central Government'. Moreover, with respect to Goods and Service Tax in relation to inter-State Trade the Parliament alone has the authority to legislate as would be evident from the 101st Amendment to the Constitution. In this view of the matter we are of the considered view that on the relevant date i.e. 17.12.2017 there was no requirement of carrying T.D.F. Form-1 in the case of an inter-State supply of goods. In fact on the relevant date there was no prescription of the documents to be carried in this regard under Rule 138 of the C.G.S.T. Act 2017, accordingly, the seizure and penalty imposed upon the petitioners based on the notification dated 21.7.2017 issued under Rule 138 of the U.P.G.S.T. Act 2017, which was not applicable, is clearly illegal. Cross-empowerment under section 4 of I.G.S.T. Act 2017 and section 6 of C.G.S.T. Act 2017 merely means that State Authorities empowered under the U.P.G.S.T. Act 2017 can also enforce the provisions of C.G.S.T. Act 2017 or I.G.S.T. Act 2017, but it does not mean that they can apply the provisions of U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only by the statement made by Dr. Deepti Tripathi as recorded hereinabove, but also by the judgment of the Kerala High Court on the subject as reported in ASCICS Trading Company v. Assistant State Tax Officer anr., 2017 NTN (Vol.65) 145, wherein it has been held as under: 3. To a pointed query as to the power of the State Government to detain goods for alleged non compliance with the requirement of carrying the prescribed documents under the I.G.S.T. Act, which is the basis for the detention in Ext. P5 notice impugned in the writ petition, the learned Government Pleader would take me through the provisions of the IGST Act, CGST Act and SGST Act and in particular, the provisions of Section 4 and Section 20 of the IGST Act and Section 6 of the CGST Act read with Rule 138 of the CGST Rules as amended by notification No.27/2017 - Central Tax for the purposes of pointing out that, although the power to prescribe the documents that are to accompany the transportation of goods in the course of interstate trade is conferred on the Central Government, the Central Government has, till date, not notified the documents that have to be carried by a transporter of the goods in the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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