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TMI Blog2020 (9) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... of machine for performance of job work has not been examined on merits. There is also no consideration or finding in the orders passed by the authority which may suggest that this transportation of machine was for any other purpose. The proper Officer in terms of the scheme was expected to examine the specific defence set up by the petitioner and consequently determine the liability of tax payable by the petitioner. It is only after determining the liability to pay tax that the liability to pay penalty could be determined. This exercise does not appear to have been performed by the proper Officer in the manner expected by it in accordance with the Act. Petitioner's claim that no liability to pay tax had arisen till the time when the machine was being transported is also required to be examined. Such factual issues require proper determination at the level of the proper Officer, at the first instance. The proper Officer is requested to examine such defence of the petitioner and thereafter determine the liability, if any, in accordance with law. It is made clear that this Court has not determined the liability of the petitioner on merits and all issues of fact are left open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law alone, but even factual issues are also open for examination before the Tribunal. Had such an opportunity be given, the petitioner could have addressed the Tribunal on factual issues also. It is, therefore, submitted that while exercising jurisdiction under Article 226 of the Constitution of India this Court may keep in view the above provisions so as to protect the rights of the petitioner with regard to statutory remedy available before the Tribunal, at the first instance. A perusal of record would go to show that transport Vehicle No. U.P. 70 A.T. 5360 was detained by the C.G.S.T. authorities on 9.1.2020 at 6:20 A.M. on Yamuna Expressway while it was transporting a drilling machine. The driver of the vehicle produced an E-way bill electronically as per which the machine was being transported from SD Technologies Kisan Vihar, Ghansoli, Maharashtra to Sector 3, Block 10 Rajendra Nagar, Ghaziabad. The value of the machine along with tax was shown as ₹ 41,30,000/-. No tax invoice, chalan, hard copy etc. was found with the vehicle. Finding it to be a violation of Rule 138 of the G.S.T. Rules the vehicle was detained and a notice was issued to the petitioner under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contra, learned Standing Counsel submits that the authorities have correctly assessed the liability of tax and penalty on the basis of admitted materials and, there is no illegality in the order itself. I have heard Sri Nishant Mishra, learned counsel for the petitioner and Sri B. K. Pandey, learned Standing counsel and have examined the materials on record. Section 129 provides for detention, seizure and release of goods and conveyance in transit. In the event it is found that transportation of goods is in contravention of the provisions of the C.G.S.T. Act or Rules made there under then the competent authority is empowered to detain and thereafter seize goods and vehicle. It is only upon payment of applicable tax and penalty specified under Section 129(1) that such goods can be released. Section 129(1) and sub-Section 3 of Section 129 is reproduced hereinafter:- 129 (1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rformance of contract to supply services and, therefore, by virtue of Section 7, 9 and 13 read with 31 of the Act the nature of transaction as also the liability to pay tax has to be determined. According to petitioner in terms of the above provisions no liability to pay tax has yet arisen as the contract of service is yet to be performed and no payment for services has yet been received. It is submitted that the authorities have not correctly examined facts in light of the claim set up by it and, therefore, the orders passed are unstained. Admittedly, in the facts of the present case the petitioner did accept that the e-way bill with the vehicle did not contain correct description with regard to movement of goods. Another e-way bill (though not available with the vehicle, at the time of detention) has also been produced along with details of job work executed in favour of the petitioner. The tax invoice which has been relied upon for determining the liability of tax admittedly is of the year 2018 and it is not the case of the Department that such amount of tax was not paid at the time when the machine was purchased in the year 2018 itself. It is also not the case of the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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