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TMI Blog2021 (10) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Counsel for the Review Petitioners/Applicants. Mr. Anurag Soan a/w Mr. Aniket Nimbalkar i/by DMD Advocates, for Respondent No.1. Mr. Jitendra B. Mishra, Advocate for Respondent No.3. P.C. Heard Mr. Sonpal, learned special counsel for the review petitioners and Mr. Anurag Soan, learned counsel for respondent No.1 (original petitioner). We have also heard Mr. Jitendra Mishra, learned counsel for respondent No.3. 2. This petition seeks review of judgment and order dated 16.09.2020 passed by the writ court in Writ Petition No.6968 of 2019. 3. Since there is delay of 50 days in filing the review petition, review applicants have filed interim application for condonation of delay. 4. Upon hearing learned counsel for the parties and considering the averments made in the interim application, delay in filing review petition is condoned. 5. Insofar the review petition is concerned, we may note that the related writ petition was filed seeking the following reliefs :- 2. By filing this petition under Articles 226/227 of the Constitution of India, petitioner seeks a direction to the respondents to refund an amount of ₹ 4,73,26,512.00 alongwith appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount with the Government is ₹ 7,80,88,745/- but the amount payable to the Respondent-authorities is ₹ 1,65,64,279/- assuming the Petitioner fails in his challenges. He submits that the Petitioner is willing to secure the Respondent-authorities for this amount. He submits that he has to make this request in the peculiar facts and circumstances that there is no appellate Tribunal currently functioning which can take up the grievance of the Petitioner on merits. Prima facie, we find request made by the Petitioner as fair. 3) Considering the fact that the matter has been pending for some time and orders have been passed by this Court, we direct Respondents to place on record the amount which according to the Respondents is payable by the Petitioner in case the Petitioner fails in his challenge, after deducting the amounts paid by the Petitioner and after encashment of bank guarantee. 4) Place the Petition on board under the caption, For Directions on 21 January, 2020. By this date we expect a positive statement from the Respondents regarding the above aspect. The Petitioner has produced a calculation sheet and states the same will be furnished to the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to pay a further amount of ₹ 1,65,64,279.00 only whereas respondents are holding onto an amount of ₹ 3,07,62,233.00 of the petitioner much in excess of the dues. 26. Section 107 of the CGST Act provides for appeals to appellate authority. Sub-section (1) says that any person who is aggrieved by any decision or order passed under the CGST Act may appeal to the prescribed authority within three months from the date on which the impugned decision or order is communicated. Sub-section (6)(b) provides that no such appeal shall be filed unless appellant has paid a sum equal to 10% of the remaining amount of tax in dispute arising from the impugned decision or order. There is provision for filing further appeal to the appellate tribunal under Section 112. As per sub-section (1), any person who is aggrieved by an order passed against him under Section 107 or by the revisional authority under Section 108 may prefer appeal to the appellate tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to the aggrieved person. As per sub-section 8(b), no appeal shall be filed under sub- section (1) unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of. However, there shall be no order as to cost. 9. The review petition has been filed seeking review of the aforesaid judgment and order on the following grounds :- A) The Hon ble Court ought to have appreciated that the Bank Guarantees were unconditional and has no relation to payment with Form 3B for Oct 2018. The payment in Form 3B were with regard to intestate supply of the product and the bank guarantees were in relation to the contravention of the provision of Section 129 of the CGST Act and they are not related and are altogether different events. B) Section 129 of the CGST Act is as under :- Detention, seizure and release of goods and conveyances in transit (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 documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released, (a) on payment of penalty applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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. The section begins with a non-obstante clause and the tax and penalty under it is independent of the tax paid by the taxpayer under other provisions of the Act. C) The Hon ble Court ought to have appreciated that part payment to be made for first appeal and second appeals has no bearing on the unconditional bank guarantees for discharge of liabilities at the time of detention of vehicles. Generally, the tax payer raises the invoice and immediately dispatches the goods to his customer. When the tax payer dispatches the goods without following the provisions relating to Section 129 and the vehicle is intercepted, he becomes liable to pay the tax/penalty as laid down in the Section 129. The tax and penalty payable by him under Section 129 has no relation whatsoever with the tax payment with return in Form GSTR 3-B because the Form GSTR 3-B becomes payable only later and the interception happens immediately as the goods are dispatched, much before the payment relating to the supply of goods in the vehicle. D) At any rate th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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