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TMI Blog2020 (11) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... nts which were tendered are found to be defective'. From the very contents of the Form GST MOV-06, wherein it is alleged that the 'documents tendered are found to be defective', it is clear that the documents available with the driver were actually tendered to the 1st respondent. They clearly showed that the goods were to be delivered at Secunderabad. Therefore as mentioned in the Circular dt. 13.4.2018, the vehicle should be allowed to proceed further and the movement of goods cannot be stopped prima-facie - The explanation offered by the petitioner in reply dt. 23-01-2020 to the notice in Form GST MOV-06 dt. 22-01-2020 that generally material from Salem, Tamil Nadu purchased by various dealers at Hyderabad which is to be delivered at Hyderabad at various destinations do come in groups and assemble at IDA Jeedimetla; that the vehicles through Outer Ring Road reach Jeedimetla as there is no entry for heavy vehicle into the city through main roads; and the person in charge from SAIL (TN) reaches IDA Jeedimetla and directs the vehicle drivers to the respective delivery points, cannot be said to be unbelievable. The fact that the said explanations have not even consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative of Article 14 and 265 of the Constitution of India apart from Article 301 of the Constitution of India and also the provisions of the Act and Rules made thereunder - Petition allowed. - Writ Petition No. 2563 of 2020 - - - Dated:- 11-11-2020 - M.S. Ramachandra Rao And T. Amarnath Goud, JJ. For the Appellant : N. Kodanda Rama Rao For the Respondents : J. Anil Kumar, Learned Special ORDER M.S. RAMACHANDRA RAO, J. 1. The petitioner is a trader in Steels registered under the Central Sales Tax Act, 1956 (for short 'the Act') having its registered office in Secunderabad. 2. It purchased, in the course of its business, material from M/s. Steel Authority of India Limited (SAIL), Kodambakkam, Tamil Nadu. 3. While the goods were in transit from the place of purchase to the petitioner's business premises at Secunderabad and when the carrier/goods vehicle was en route at Jeedimetla, it was checked and detained at IDA Jeedimetla on 22-01-2020 at 11.15 p.m. 4. A notice was issued Ex. P1-Form GST MOV-06 dt. 22.01.2020/order of detention under Section 129(1) of the Act on the ground that prima facie the 'documents tendered were found to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent in detaining the vehicle containing the goods of the petitioner on 22-01-2020 at IDA Jeedimetla and then demanding that petitioner should pay tax and penalty as per the provisions of the Act though all the required documents were available with the driver of the vehicle and later releasing it on 25-01-2020 only after collecting from the petitioner ₹ 9,40,428/-towards tax and penalty, is illegal, arbitrary and violative of Article 14 of the Constitution of India as well as Article 301 of the Constitution of India, and seeks a direction to the 1st respondent to refund the tax and penalty illegally collected from the petitioner. 11. It is the contention of the petitioner that 1st respondent had forcibly taken Ex. P5 statement on 22.01.2020 from the driver of the vehicle carrying petitioner's goods that he was told by the petitioner to stay at Weigh Bridge in Jeedimetla and that petitioner's agent would direct the vehicle driver to deliver the goods at some places in Jeedimetla. 12. It is contended that when the vehicle was checked, it was stopped near a weigh bridge in IDA Jeedimetla and that the 1st respondent had not contended that the goods were unlo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the goods were never destined to Secunderabad because the driver did not state that the goods were to be delivered at Secunderabad. 21. It is contended that after the goods were released on 25-01-2020 at 6.15 p.m., the dealer again generated another e-way bill dt. 26-01-2020 at 9.45 a.m. on the same vehicle for the same value of goods without tax declaration and delivery was marked to M/s. Nanabhai Steels situated at Plot No. 2, Survey No. 262, Phase-I, IDA Jeedimetla, Quthbullapur, Telangana. Copy of the said e-way bill produced by the petitioner has also been filed. Reply of the petitioner to the stand of the 1st respondent 22. Reply affidavit is filed by the petitioner to the said counter-affidavit. 23. Petitioner contended that the 1st respondent with an ill motive and to cover up illegal action of detaining the vehicle at IDA Jeedimetla was trying to mislead the Court by stating in counter that the goods were in transit to IDA Jeedimetla and the driver of the vehicle never mentioned about delivery at Secunderabad by placing reliance on the statement of the driver recorded on 22-01-2020. 24. It is contended that both the invoice and e-way bill contained the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implicated the petitioner with ulterior motive for illegal gains. 32. Copies of job work challan given by petitioner to M/s. Nanabhai Steels is enclosed along with reply affidavit and it is pointed out that even the e-way bill dt. 26-01-2020 issued by petitioner for delivery at M/s. Nanabhai Steels indicated that it was for job work. 33. The contents of the e-way bill are not disputed by the learned Special Counsel for Commercial Taxes. 34. We have noted the contentions of both sides. The consideration by the Court 35. S. 107 provides an appellate remedy only against a decision/order of an adjudicatory authority. 36. It is not the case of the 1st respondent that he had passed any reasoned order and communicated to the petitioner after considering petitioner's explanation Ex. P4 dt. 23.1.2020 to the Ex. P1 dt. 22.1.2020 in Form GST-MOV-6 issued by him. 37. Without there being any order/decision passed by the 1st respondent and communicated to the petitioner, the petitioner cannot be expected to file appeal invoking Section 107 of the TGST Act, 2017. 38. So we reject the plea of the 1st respondent that the petitioner should avail the remedy of appeal unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c). (4) No tax, interest or penalty shall be determined under sub-Section (3) without giving the person concerned and opportunity of being heard. (5) On payment of amount referred in sub-section (1), all proceedings in respect of the proceedings specified in sub-section (3) shall be deemed to be concluded. (6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in subsection (1) within seven days of such detention or seizure, further proceedings shall be initiated in terms of Section 130: Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer. 43. Therefore, under the above provision there is power conferred on the respondents to detain goods while in transit if there is contravention of the provisions of the Act or the Rules made thereunder. 44. Section 68 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requiring the person in charge of the conveyance to station the conveyance at the place mentioned in such order and allow the inspection of the goods. The proper officer shall, within twenty four hours of the aforementioned issuance of FORM GST MOV-02, prepare a report in Part A of FORM GST EWB-03 and upload the same on the common portal. (e) Within a period of three working days from the date of issue of the order in FORM GST MOV-02, the proper officer shall conclude the inspection proceedings, either by himself or through any other proper officer authorised in this behalf. Where circumstances warrant such time to be extended, he shall obtain a written permission in FORM GST MOV-03 from the Commissioner or an officer authorized by him, for extension of time beyond three working days and a copy of the order of extension shall be served on the person in charge of the conveyance. .... These instructions issued by the Board are binding upon all Officers discharging under the Act. 48. In Synergy Fertichem Pvt. Ltd. vs. State of Gujarat 2020 (33) G.S.T.L. 513 : [2020] 76 GSTR 81 (Guj), the Gujarat High Court referred to another Circular dt. 14.9.2018 and held as follows: 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under section 129 of the CGST Act may not be initiated, inter alia, in the following situations: a) Spelling mistakes in the name of the consignor or the consignee but the GSTIN, wherever applicable, is correct; b) Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill; c) Error in the address of the consignee to the extent that the locality and other details of the consignee are correct; d) Error in one or two digits of the document number mentioned in the e-way bill; e) Error in 4 or 6 digit level of HSN where the first 2 digits of HSN are correct and the rate of tax mentioned is correct; f) Error in one or two digits/characters of the vehicle number. 6. In case of the above situations, penalty to the tune of ₹ 500/-each under section 125 of the CGST Act and the respective State GST Act should be imposed (₹ 1,000/-under the IGST Act) in FORM GST DRC-07 for every consignment. A record of all such consignments where proceedings under section 129 of the CGST Act have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravention was with a definite intent to evade payment of tax. We may give one simple example. The driver of the vehicle is in a position to produce all the relevant documents to the satisfaction of the authority concerned as regards payment of tax etc., but unfortunately, he is not able to produce the e-way bill, which is also one of the important documents so far as the Act, 2017 is concerned. The authenticity of the delivery challan is also not doubted. In such a situation, it would be too much for the authorities to straightway jump to the conclusion that the case is one of confiscation, i.e., the case is of intent to evade payment of tax. (emphasis supplied) 50. We are in complete agreement with the ratio laid down by the Gujarat High Court in Synergy Fertichem Pvt. Ltd. (supra) and hold that: (i) that at the time of detention and seizure of goods or conveyance, the first thing the authorities need to look into closely is the nature of the contravention of the provisions of the Act or the Rule; (ii) the second step in the process for the authorities to examine closely is whether such contravention of the provisions of the Act or the Rules was with an intent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective delivery points, cannot be said to be unbelievable. The fact that the said explanations have not even considered by the 1st respondent is also glaring. 57. When the petitioner denies that the driver of the vehicle carrying the goods did not understand Hindi, no reliance can be placed on the statement of the driver of the vehicle noted on 22.1.2020 that goods were to be delivered at IDA Jeedimetla. 58. The other reason mentioned is that 'the goods were being transported from Salem to Distillery Road, Secunderabad, but the vehicle is checked at IDA Jeedimetla'. 59. So the question is whether 'checking of the vehicle at IDA Jeetimetla, Hyderabad' is ground for detention of goods under Section 129 of the Act or Rules made under the Act or as per the Circulars issued by Central Board of Indirect Taxes and Customs, GST Policy Wing. 60. It is not the case of the 1st respondent that mere checking of a vehicle or it being found at a different place without anything more, is by itself a 'taxable event' under the CGST Act/Telangana GST Act, 2017. 61. So, in our opinion, under these Acts, it is not permissible to detain a vehicle carrying goods or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material would be sent back to the petitioner. 69. Also it is not in dispute that petitioner waited for two days after submitting explanation to the show-cause notice for an order to be passed by the 1st respondent, and when the 1st respondent failed to do so and also did not release the vehicle and the goods, the petitioner paid the tax and penalty under protest on 25.01.2020 and got released the goods. So there was no voluntary payment of tax and penalty by petitioner for the 1st respondent to plead any estoppel against the petitioner. 70. Accordingly, the Writ Petition is allowed; the action of the 1st respondent in detaining the vehicle carrying the goods purchased by petitioner on 22-01-2020 and forcing the petitioner to pay on 25-1-2020 a sum of ₹ 9,40,618/-towards tax and penalty is declared as illegal, arbitrary and violative of Article 14 and 265 of the Constitution of India apart from Article 301 of the Constitution of India and also the provisions of the Act and Rules made thereunder. Accordingly, the 1st respondent is directed to refund the above amount within six (06) weeks together with interest @ 7% p.a. from 25.01.2020 till date of payment. No costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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