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TMI Blog2021 (5) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it, has been committed by the transporter - The finding of the officer, the 1st respondent, in the impugned order that the transaction involving the petitioner was 'suspicious' and that the transporter was found 'without proper documents' is perverse and cannot be sustained in these circumstances. The order of detention in Form GST MOV-06 on 29.12.2020 passed under Section 129(3) of the CGST Act, 2017 by the 1st respondent is set aside - Petition allowed. - WRIT PETITION NO. 2869 OF 2021 - - - Dated:- 28-4-2021 - HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO And HONOURABLE SRI JUSTICE T.VINOD KUMAR ORDER ( Per Sri Justice M. S. Ramachandra Rao ) In this Writ Petition, the petitioner seeks Writ of Mandamus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that the transporter M/s. Anmol Parcel Services, while loading the goods on the goods vehicle AP13X 6980, loaded the material of the petitioner first, and then loaded the material of M/s. Simi Steels as the quantity of the petitioner amounting to 14320.90 kgs. was more and much heavier than the material of M/s. Simi Steels which was 2018.15 kgs.; and so the latter was loaded on top of the goods vehicle. 8. According to the petitioner, the transporter has done so for his operational convenience and it had intended to unload the material on the top of the goods vehicle at Adoni first; that the goods vehicle passed through Patancheru Ring road and crossed Jadcherla on its way to Adoni in Kurnool District; and while the vehicle was on its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y about evasion of GST is imaginary and there was no violation of the CGST Act, SGST Act or IGST Act. 11. The petitioner alleges that the 1st respondent did not consider the reply of the petitioner and demanded the petitioner to pay tax and penalty for release of the vehicle, and the petitioner was forced to pay the same under protest on 04.01.2021 to secure release of the vehicle. 12. The petitioner contends that Section 129 of the GST Act would apply only in cases where it was established that there was intention or possibility of evading payment of tax in respect of the goods being transported, and even if some document such as waybill was missing at the time of verification, it would only create a rebuttable presumption that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s India Private Limited was located; and one of the consignments was to the petitioner at Hyderabad and the other was destined to M/s. Simi Steels, Adoni, Andhra Pradesh; and that though the consignees are in two different States, the consignor was only one. 16. He contended that to go to Adoni, Andhra Pradesh, the conveyance has to first pass Hyderabad, Telangana and the goods destined to the petitioner in Hyderabad should be delivered to the petitioner first, and then only the goods vehicle/conveyance should have proceeded to Adoni subsequently for delivery; but the vehicle was carrying the goods of both the Hyderabad recipient (being the petitioner) and Adoni recipient (being M/s. Simi Steels) at the time of interception. 17. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the 2.01 tonnes which is on top of the consignment of 14.30 tonnes in the goods vehicle, and then reload it in Hyderabad, which would be a cumbersome process. 21. This fundamental issue the 1st respondent shockingly did not understand and simply went by the point that Hyderabad comes first and Adoni comes later ignoring the operational convenience of the transporter. 22. It is also not the case of the 1st respondent that there was any discrepancy in the total quantity of the load, as admittedly the total load on the vehicle corresponded to the quantity mentioned in the e-waybills and invoices. Therefore, no such conclusion could even be prima facie drawn by the 1st respondent that the load of 14.30 tonnes which were meant to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are also of the opinion that the collection of the amount of ₹ 3,68,555/- towards GST and penalty of ₹ 3,68,555/- from the petitioner on 04.01.2021 was by way of economic duress since the petitioner had no choice but to pay it to secure release of the vehicle and so the petitioner is entitled to refund of the same. 30. Accordingly, the Writ Petition is allowed; the order of detention in Form GST MOV-06 on 29.12.2020 passed under Section 129(3) of the CGST Act, 2017 by the 1st respondent is set aside; it is declared that the action of the 1st respondent in detaining the goods conveyance No.AP13X 6980 on 29.12.2020 at Annasagar, Bhoothpur Mandal, Mahabubnagar District and demanding payment of GST and penalty is arbitrary, ill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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