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TMI Blog2020 (1) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... rity to such appeal and decide the same. It goes without saying that the appellate authority shall give an opportunity of hearing to the writ-applicant - writ application disposed off. - R/SPECIAL CIVIL APPLICATION NO. 20931 of 2019 - - - Dated:- 9-1-2020 - MR.J.B. PARDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: MR CHETAN K PANDYA(1973) for the Petitioner(s) No. 1 MR. SOHAM JOSHI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3 ORAL ORDER (PER : MR. J.B.PARDIWALA) 1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following relief(s): 15(A) To issue writ of mandamus or any other appropriate writ, order or direction, directing to quash and set aside an order of Confiscation of Goods and Conveyance and demand of tax, fine and penalty issued under Form GST MOV-11 dated 21.10.2019 by respondent no.3 at Annexure-J. (B) To issue writ of mandamus or any other appropriate writ, order or direction, directing to quash and set aside an order of detention of Goods and Conveyance in Form GST MOV-06 dated 06.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant documents relating to the goods and there was no contravention of any of the provisions of the Act or the Rules. It appears that the respondent no.3 issued a notice for confiscation of the goods, conveyance and levied of penalty under Section 130 of the Act. 7. We also take notice of the fact that the final order has been passed in FORM GST MOV-11, which is an order of confiscation of goods and conveyance and demand of tax, fine and penalty dated 21.10.2019. 8. Being dissatisfied with the order of confiscation passed by the respondent no.3 in FORM GST MOV-11, the writ-applicant is before this Court with the present writ-application. 9. Mr.Chetan Pandya, the learned counsel appearing for the writ-applicant, has put forward the following submissions to make good his case that the writ-application deserves to be allowed and the reliefs prayed for in the writ-application may be granted. The submissions are as under: 1. Under Rule 138A of the CGST Rules, the driver of the conveyance is required to carry invoice of bill of supply or delivery challan and E-Way bill which was carried by the driver which was certified by the State Tax Officer in FORM GST MOV-01 on 04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rification in FORM GST MOV-04. Nothing prevented to the Department to release the conveyance forthwith in FORM GST MOV-05 and then taking appropriate actions for the reason FORM GST MOV-06 and FORM GST MOV-10 was issued. 12. In fact, while the goods and conveyance are in transit, it is the intention of the legislature that goods and conveyance must go on and entire procedure under Section 129 of DGST has to be completed within 14 days. With non obstinate clause, Section 129 is Code in itself and no appeal against any decision or order is maintainable and the tax and penalty paid under this Section shall not be able to available for further input tax credit. See Clause (I) of subsection (5) of Section 17 of the CGST. 13. Subsection of Section 107 of CGST does not say that on payment of amount under subsection 6, goods and conveyance can be released whereas sub-section 11, second proviso says that unless the appellant is given show cause notice under Section 73 or Section 74 of CGST against the proposed order for payment of tax i.e. not paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilized, no order can be passed. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued MOV-4 on 06.09.2019, wherein the goods in question were duly verify with the invoices, it is pertinent to mention that MOV-4 pertains to only verification of the quanitity of the goods with the invoices. 8. I say and submit that, thereafter, EWB-3 was uploaded on the portal. Hence, prima facie considering the invoices and the E-Way Bills in comparison with the quantities of the goods, the authorities did not find any discrepancy at the very threshold, but, on 05.09.2019, a search was conducted on the business premises of the petitioner. 9. I say and submit that the said search dated 05.09.2019 was proposed in lieu of the fact that when the Mobile Squad had verified the invoices as well as E-Way Bills of the petitioner and compared the same with its on line portal, it was found that the petitioner in a short span had generated a seizable number of E-way Bills. The petitioner had obtained the registration under the GST on 22.04.2019 and the on line portal details of the petitioner which is hereby placed on record which reveals number of E-Way Bills. Hence, qua the petitioner, whose movement of goods is in cloud when the search was conducted in the business premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not received any response qua issuance of MOV-10 resultantly considering the said facts, it is a fit case falling within the purview of section 130 of GST Act and hence, the authorities have issued MOV-11 on 21.10.2019. 14. In such circumstances, referred to above, the learned AGP prays that the transaction is highly doubtful and it could be said that the intention was to evade the tax. 15. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for our consideration is, whether we should entertain this writ-application or relegate the writ-applicant to avail of the alternative remedy of preferring a statutory appeal before the appellate authority under Section 107 of the Act. 16. Having regard to the facts of the present case, we are of the view that the writ-applicant should prefer an appeal under Section 107 of the Act before the concerned appellate authority. We would not like to express any opinion on the merits of any of the submissions. We expect the appellate authority to deal with each of the submissions canvassed on behalf of the writ-applicant, as commented above. 17. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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