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TMI Blog2019 (3) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... all the above connected writ petition is similar, therefore, all the petitions are being decided by this common order. The petitioner in the writ petition no. 1660 of 2018 is seeking a direction to the respondent no. 3 Assistant Commissioner, Commercial Tax/State Goods and Services Tax, Mobile Squad-Kannauj to drop the proceedings initiated against the petitioner vide notice dated 17.12.2018 under section 130 of the U.P. Goods and Services Tax Act, 2017 (hereinafter referred to as the UPGST Act, 2017). A further relief has been sought directing the respondent no. 3 not to confiscate Vehicle No. UP 92 T/0714 and to release the said vehicle. The case of the petitioner is that he is only the owner of the vehicle which he gives to various transporters as per request made by them for transporting their goods and the petitioner himself is not doing any business with respect to the sale and purchase of goods. It is stated that the petitioner is neither concerned with the purchaser nor the seller of the goods and his only role is for providing vehicle for transportation of the goods and he is not doing any business as contemplated under section 2(17) of the UPGST Act, 2017. The contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are both active, the respondents should have proceeded against them and not against the petitioner transporter who has nothing to do with any illegality or non payment of tax by either the consignor or consignee of the goods. Referring to the documents filed at page 78 of the counter affidavit, he submitted that the order of cancellation of registration which is dated 22.12.2018 refers to a show cause notice dated 3.12.2018 which is two months after the date of transaction and shows the recovery under various heads to be Nil. He therefore submits that no recovery is being made from the seller M/s Kusum Traders. The counsel further referred to Rule 138 of the UPGST Rules, 2017 which states that till such time as an E-way bill system is developed and approved by the Council, the Government may, by notification, specify the documents that the person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage. Reference has also been made to the amended Rule 138-A added by way of amendment vide U.P. Goods and Service Tax (14th Amendment) Rule, 2018 which makes amendments to section 138 and adds a new Rule 138-A which pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to the supplementary counter affidavit particularly Annexure-2 and 4 and submitted that the correct E-way bill of the Annexure SCA 2, is the E-way bill no. 431029790982 generated on 4.10.2018 at 6.42 a.m. and which was valid upto 21.10.2018. The details of the consignee has been mentioned as M/s Kusum Traders Mahadeo Ghurhu Itwa, Siddharth Nagar, U.P. as the station of origin and destination was shown as M/s Bhawna Trading Company, Rui Mandi, Sadar Bazar, New Delhi, which is out side Delhi, therefore, he submits that the Central Goods and Service Tax Act, 2017 would apply and not the U.P. GST Act, 2017. He further submitted that goods shown as 'copper scrape' and item no. 4 Transportation Details mentioned the ID number of the Transporter and mentioned the vehicle number as UP 78 BT 7620 and the details of the traveling are shown as from Siddharth Nagar starting on 4.10.2018 at 6.42 a.m. He further submitted that at item no. 5 itself the same vehicle number being UP78BT 7620 is shown as starting from Kanpur on 15.10.2018 at 6.33 p.m. which shows the movement of the vehicle but then referring to Annexure-3 to the supplementary counter affidavit which is also an E-way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng team has also found that 142 firms in 17 different States were completely bogus and that on one account number pertaining to electricity bill different persons have obtained registration certificates and these bills are also fake and not of real or of existing persons. The bank accounts of these firms have also been found to be fake showing the same balance in different names in the document used for the purposes of registration. Paragraph 14 of the counter affidavit is being reproduced below: "14. That, it is also relevant to bring to the kind notice of this Hon'ble Court that GSTN in response to a Email from the answering respondents has also confirmed the following: 1) We had found 50 entities using this Mobile No. 9193351371 across the country. 2) These 50 entities are using 09 unique Email ids. 3) 22 more entities found using these 09 Email ids across the country. 4) Extracted the pre-details of these 72 entities 5) By PAN No. these numbers, 30 more entities found across the country. For kind perusal of this Hon'ble Court photo copies of letter written to the GSTN and their reply are being filed herewith and marked as Annexure No. C.A.-5 to this affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the fifty per cent of the value of goods reduced by the tax amount paid thereon and in case of exempted goods, on payment of an amount equal to five per cent of the value of goods or twenty five thousand rupees, whichever is less. Reference was also made to Section 130 of the UP GST Act 2017 which provides for 'Confiscation of goods or conveyances and levy of penalty.' Sub Section (1) Clause (v) of Section 130 states that if any person uses any conveyance as a means of transport for carriage of goods in contravention of the provisions of this Act or the rules made thereunder unless, the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in-charge of the conveyance then all such goods or conveyances shall be liable to confiscation and the person shall be liable to penalty under Section 122 of the Act. Reference has also been made to Section 130 Sub Section (2) proviso thereto which provides that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is not a "registered person" as defined in Section 2 sub section (94) of the Act, 2017 or that he is not a "taxable person" as defined in Section 2 sub section (107) of the Act, 2017 but so far as the provisions of Section 122 relating to penalty for certain offences are concerned he would fall within the definition of 'any person' who "in any way concerns himself" in transporting, removing, ... and he would be liable for payment of penalty to the extent of Rs. 25,000/-, if he is found guilty of the offence. Sub section (3) of Section 122 of the Act, 2017 reads as under:- "122.-Penalty for certain offences- (1)..... (2)..... (3) Any person who-- (a) aids or abets any of the offences specified in clauses (i) to (xxi) of sub-section (1); (b) acquires possession of, or in any way concerns himself in transporting, removing, depositing, keeping, concealing, supplying, or purchasing or in any other manner deals with any goods which he knows or has reasons to believe are liable to confiscation under this Act or the rules made thereunder; (c) receives or is in any way concerned with the supply of, or in any other manner deals with any supply of services which he k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. (3) Where any fine in lieu of confiscation of goods or conveyance is imposed under sub-section (2), the owner of such goods or conveyance or the person referred to in sub-section (1), shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance. (4) No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard. (5) Where any goods or conveyance are confiscated under this Act, the title of such goods or conveyance shall thereupon vest in the Government. (6) The proper officer adjudging confiscation shall take and hold possession of the things confiscated and every officer of Police, on the requisition of such proper officer, shall assist him in taking and holding such possession. (7) The proper officer may, after satisfying himself that the confiscated goods or conveyance are not required in any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 129 of Act, 2017. What is, therefore, noticed is that for the application of Sections 129 and 130 of the Act, 2017 it is immaterial that the person proceeded against is not a registered person or a supplier or a taxable person or is not doing any business as provided in any of the sub sections of Section 2 of the Act, 2017. It is enough that he is a 'transporter' of goods and that the goods are being transported and have been seized in transit and if the charge is made out against the transporter, the respondents can proceed to seize such goods including the conveyance. In the present case what we find is that a show cause notice has been issued to the petitioner on 17.12.2018 and it is always open for the petitioner to file a reply to the same. Therefore, the contention of the petitioner that he is not doing any business in respect of sale or purchase of the goods or is not concerned with the goods as he is a mere transporter and is only providing vehicles for transporting and therefore the impugned notice is bad and without any substance and is rejected. Learned counsel for the petitioner further submitted that under section 129 of the Act on payment of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations made above. In the connected Writ petition no. 1645 of 2018( Praveen Singh @ Praveen Kumar Singh Vs State of U.P. & Ors), the petitioner is seeking quashing of the show cause notice dated 10.12.2018 issued under Section 130 of the Act, 2017. A further relief has been sought directing the respondent no. 3 to release the truck no. NL01Q/8841. In this writ petition the facts are quite similar to that of the leading writ petition and Sri Alok Kumar, learned counsel for the petitioner has advanced the same arguments as that of Sri Rahul Agarwal and Sri Shubham Agrawal. The only differentiating contention of Sri Alok Kumar is that only the registration of the purchaser has been canceled but not of the seller Laxmi Sales Corporation against whom the department can proceed therefore, it was not necessary to seize the vehicle of the petitioner for the purposes of the enquiry. It is quite immaterial as to whether the registration of the purchaser or the seller has been canceled since these are all questions of fact into which this Court cannot enter or make any observations as the matter is pending before the trial court and any observations would prejudice the trial. So far ..... X X X X Extracts X X X X X X X X Extracts X X X X
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