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TMI Blog2021 (9) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... d 02.12.2019 by treating the detention notice as assessment order, as contrary and violative of principles of natural justice and for a consequential relief of refunding the amount of Rs. 5,15,000/- after deducting the tax of Rs. 32,500/-. 2. Petitioner's case succinctly is thus: (a) Petitioner is a registered dealer under GST Act doing business in fresh/wet tamarind etc., by purchasing them from farmers/agriculturists and bringing to his business premises at Punganur and selling the same. Tamarind is enumerated in Entry No.57 of Schedule-I to the GST Act, 2017 with Tariff Item No.0810 and is exempted from tax. (b) After GST Act came into force on 01.07.2017, the GST officials held meetings with dealers to familiarize them with procedure to be followed under GST regime. The farmers, who sell wet tamarind being not registered dealers, cannot issue tax invoices and delivery challans. Hence, department officials informed to the dealers that when wet tamarind and other goods are purchased from farmers and transported, the commodity should be accompanied with photo copies of Aadhaar card of the farmers from whom they purchased and on the left side top, the details like Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings invoked under Section 130 of SGST Act. Petitioner contends that no proceedings under Section 130 were passed by the 1st respondent and except notice of detention under section 129, no further notice was issued nor other proceedings were initiated by the 1st respondent. (g) Subsequently, the 1st respondent issued impugned "summary of the order" dated 12.12.2019 in Form GST DRC-07 showing the details of the payment viz., tax Rs. 16,250/-; penalty Rs. 16,250/- and Rs. 4,50,000/- for "others" i.e., the amount collected for release of the goods. Thus, without issuing opportunity of hearing and without passing assessment order or penalty order or confiscation order under the relevant provisions, the 1st respondent has treated the detention notice dated 11.03.2018 as assessment order plus penalty without specifying any provision of the law. Hence, the writ petition. 3. The 1st respondent filed counter opposing the writ petition inter alia contending thus: (a) As against the impugned order appeal lay before Appellate Joint Commissioner (ST) under Section 107 of the GST Act, 2017 and therefore, the writ petition is not maintainable. Nextly, it is contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in accordance with provisions of the GST Act, 2017. The petitioner failed to produce the invoices. (e) The petitioner got released all the goods proposed for confiscation upon payment of the fine, tax and penalty by availing the option afforded under Section 130(2) and (3) of the GST Act, 2017. An opportunity to file written objections and personal hearing was given to the petitioner but he did not avail. In the instant case proceedings under Section 129 and 130 of GST Act, 2017 are applied but not under Section 67(7) of the GST Act. Refund claim of the petitioner does not come under the provisions of Section 54 of GST Act, 2017 and hence rejected. He thus prayed to dismiss the writ petition. 4. The petitioner filed reply affidavit denying the counter allegations. While reiterating the plea that at the time of interception of the vehicle no show cause notice was issued to the petitioner, it is further pleaded that the alleged show cause notice filed by the 1st respondent was prepared later after obtaining the signature and stamp of the petitioner on blank paper. The petitioner denied that he filed consent letter dated 12.03.2018 duly admitting offences. The detained goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Commissioner, issued a notice of rejection of refund application under Form-GST-RFD-08 informing for the first time that out of the amount collected from the petitioner on 14.03.2018, Rs. 4,82,500/- was appropriated towards the enforcement collection under Section 130 of AP GST Act and hence the petitioner was not entitled to claim refund, meaning thereby, the 1st respondent invoked the confiscation proceedings under Section 130 on 11.03.2018 and in lieu of confiscation, collected fine of Rs. 4,82,500/- and balance towards tax and penalty, totalling to Rs. 5,15,000/-. Learned counsel vehemently argued that the reason mentioned for rejection of the refund application is unjust and illegal, inasmuch as, the authority never invoked confiscation proceedings under Section 130. Rather the 1st respondent invoked the procedure under Section 129 for the seizer of the goods and conveyance. As stated supra, since the goods were perishable, the petitioner had to pay the amount demanded by the 1st respondent under protest and it was promised that during the assessment proceedings, the petitioner's objections will be considered and order will be passed. Hence, the question of 1st re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnish the information relating to the said goods electronically on the common portal and obtain a e-Way Bill. Such requirement of furnishing information relating to goods consignment arises when the goods are (1) in relation to supply or (2) or for reasons other than supply or (3) due to inward supply from a unauthorised person. (d) Then Section 138 (A) prescribes the documents and devices to be carried by a person in-charge of a conveyance. It lays down thus: "138A. (1) The person-in-charge of a conveyance shall carry- (a) the invoice or bill of supply or delivery challan, as the case may be; and (b) a copy of the e-way bill in physical form or the e-way bill number in electronic form or mapped to a Radio Frequency Identification Device embedded on to the conveyance in such manner as may be notified by the Commissioner: Provided that nothing contained in clause (b) of this sub-rule shall apply in case of movement of goods by rail or by air or vessel. xxxx xxx (e) Rule 138B deals with verification of documents and conveyances. This provision says that the Proper Officer who is authorized in this behalf can intercept any conveyance to verify the e- way bill in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be of such a nature that on the face of the entire transaction, the authority concerned should be convinced that the contravention was with a definite intent to evade payment of tax. The action, in such circumstances, should be in good faith and not be a mere pretence. In other words, the authorities need to make out a very strong case. Mere suspicion may not be sufficient to invoke Section 130 of the Act straightway. (iv) If the authorities are of the view that the case is one of the invoking Section 130 of the Act at the every threshold, then they need to record their reasons for such belief in writing and such reasons recorded in writing should, thereafter, be looked into by the superior authority so that the superior authority can take an appropriate decision whether the case is one of straightway invoking Section 130 of the Act (emphasis supplied) (v) Even if the goods or the conveyance is released upon payment of the tax and penalty under Section 129 of the Act, later, if the authorities find something incriminating against the owner of the goods in the course of the inquiry, if any, then it would be permissible to them to initiate the confiscation proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted confession letter dated 12.03.2018, basing on which, the 1st respondent issued proceedings dated 14.03.2018 and after payment of the stipulated amount, a release order of even date was also passed. However, the petitioner emphatically denied having received show cause notice dated 11.03.2018 and allegation of his executing confession letter. 11. We have carefully perused the documents which are filed along with counter as Ex.R1 to R4. The show cause notice contains the stamp and signature of the petitioner. So also the confession letter dated 12.03.2018 is written in vernacular language i.e., Telugu and it also contains the signature of the petitioner. If issuance of the show cause notice and passing of the proceedings consequent upon the admission of the guilt of the petitioner are true, the respondents can be said to have followed the procedure contemplated under Section 130. The question is whether the show cause notice dated 11.03.2018 was issued to the petitioner and whether the petitioner executed the confession letter dated 12.03.2018. The petitioner's explanation in his reply is that he did not receive the show cause notice and did not execute the confession letter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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