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TMI Blog2022 (9) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... of a copy of order of extension upon the person in charge of conveyance and iii) non-adherence to the requirement for uploading of Part-B of Form GST EWB-03 on the portal - Incidentally, notice has, admittedly, not been issued on 22.08.2022, but only on 24.08.2022. That apart, Section 129(3), read with the proviso thereunder, requires a show cause notice to be issued within 7 days of detention or seizure. Vide an amendment brought to clause 2(e) of Circular dated 13.04.2018 vide Circular No.49/23/2018-GST dated 21.06.2018 in F.No.CBEC/20/16/03/2017-GST, the expression three working days in the April circular has been replaced by the expression three days . In such circumstances, neither the petitioner nor the respondents can have the luxury of reference to a holiday to delay or protract the proceedings. This is precisely what the respondents seek to do in the present case. This is made explicitly clear from the Circular and the amendment brought about on 21.06.2018 and the submission of learned Government Pleader runs directly contrary to the amendment under the Circular and the purpose it evidently seeks to advance. These submissions are thus found to be misconceived an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be unloaded at an unregistered place. No reasons or details in respect of this assumption are assigned. iv) In any event, since in this order, I am solely concerned with the integrity of the procedure followed by the respondents in matters of detention, serious lapses coming to my attention in the course of the hearing, the facts in relation to the alleged discrepancies in conveyance are not relevant and are not alluded to, except as required. v) On 13.08.2022, Form GST MOV 04, being physical verification report was also issued. vi) Thereafter, there has been no notice issued by the respondents in terms of Section 129 (3) of the Goods and Services Tax Act, 2017 (in short Act ) requiring a show cause notice to be issued within 7 days from date of detention/seizure and hence this Writ Petition. vii) In the meantime, on 17.08.2022, the petitioner has made a representation requesting that the conveyance be permitted to proceed on its way and setting out an explanation for the alleged discrepancy that has been noted by the officer. viii) According to the petitioner, the time frames that have been set out under the Act, particularly Section 129(1) proviso and 129(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when notice ostensibly dated 22.08.2022, has been sent, produced in the course of hearing. xi) The learned Additional Government Pleader has produced an order of detention and show cause notice, under Section 129(3), both dated 22.08.2022. xii) In light of the above, the petitioner argues that there has been no proper procedure followed, in any event, none, in line with the statutory prescription and the actions of the respondents have been irregular and contrary to the Statute and Regulations. 4. Learned Additional Government Pleader circulates a copy of Circular No.41/15/2018 GST dated 13.04.2018 in CBEC-20/16/-3/2017-GST, issued by the Central Board of Indirect Taxes and Customs, GST Policy Wing and draws my attention to the following procedure to be followed, as per the Circular. He would emphasize on the point that there is no statutory prescription for any of the Forms that are referred to in Section 129. The entirety of the procedure followed, and the Forms issued post interception, are only as per the mandate of the Circular issued by the Commissioner under Section 168 of the Act. 5. Though cumbersome, the entirety of the instructions in Circular dated 13.04.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall issue an order for physical verification/inspection of the conveyance, goods and documents in FORM GST MOV-02, 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 (f) On completion of the physical verification/inspection of the conveyance and the goods in movement, the proper officer shall prepare a report of such physical verification in FORM G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of sub-section (1) of section 129 of the CGST Act. The finalisation of the proceedings under section 129 of the CGST Act shall be taken up on priority by the officer concerned and the security provided may be adjusted against the demand arising from such proceedings. (j) Where any objections are filed against the proposed amount of tax and penalty payable, the proper officer shall consider such objections and thereafter, pass a speaking order in FORM GST MOV- 09, quantifying the tax and penalty payable. On payment of such tax and penalty, the goods and conveyance shall be released forthwith by an order in FORM GST MOV-05. The order in FORM GST MOV09 shall be uploaded on the common portal and the demand accruing from the order shall be added in the electronic liability register and, upon payment of the demand, such register shall be credited by either debiting the electronic cash ledger or the Page 4 of 32 electronic credit ledger of the concerned person in accordance with the provisions of section 49 of the CGST Act. (k) In case the proposed tax and penalty are not paid within seven days from the date of the issue of the order of detention in FORM GST MOV-06, action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration the objections filed by the person in charge of the conveyance and the same shall be served on the person concerned. Once the order of confiscation is passed, the title of such conveyance shall stand transferred to the Central Government. In the order passed above, a suitable time not exceeding three months shall be offered to make the payment of penalty and fines imposed in lieu of confiscation and get the conveyance released. The order in FORM GST MOV-11 shall be uploaded on the common portal and the demand accruing from the order shall be added in the electronic liability register and, upon payment of the demand, such register shall be credited by either debiting the electronic cash ledger or the electronic credit ledger of the concerned person in accordance with the provisions of section 49 of the CGST Act. (p) The order referred to in clauses (n) and (o) above may be passed as a common order in the said FORM GST MOV-11. (q) In case neither the owner of the goods nor any person other than the owner of the goods comes forward to make the payment of tax, penalty and fine imposed and get the goods or conveyance released within the time specified in FORM GST MO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Immediate, upon interception 13.08.2022 GST MOV-02 Order for physical verification/inspection of the conveyance, goods and documents Immediate upon interception 13.08.2022 GST EWB-03 Part A Prepare a report within 24 hours None in the present case GST MOV-03 Seeking extension of time beyond 3 working days for conclusion of interception None in the present case GST MOV 04 Report of physical verification Immediately on completion of physical verification 13.08.2022 GST EWB-03 Part B Final report of inspection Within 3 days of physical verification/inspection None in the present case GST MOV-05 Release, after inspection when no discrepancies found Immediate, after verification Does not arise in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the concept of working day and holiday and rightly so, since substantial civil rights of the parties are at stake by the aforesaid powers. Thus, the decision in regard to whether such detention is required at all and the fate of such detention must be decided expeditiously by the officials concerned. In this context learned pleader will agree, on instructions, that the roving squad of the GST Department knows no distinction between working and non-working days and the wing works 24/7, the year through. 11. In such circumstances, neither the petitioner nor the respondents can have the luxury of reference to a holiday to delay or protract the proceedings. This is precisely what the respondents seek to do in the present case. This is made explicitly clear from the Circular and the amendment brought about on 21.06.2018 and the submission of learned Government Pleader runs directly contrary to the amendment under the Circular and the purpose it evidently seeks to advance. These submissions are thus found to be misconceived and hyper-technical, and are rejected. 12. The acts of interception and retention, though an invasion into the rights of citizens, have been accorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion. 16. According to learned Government Pleader, the above directions should be read to be an order of detention. This argument is rejected outright. There is a critical difference between directing the driver to station the vehicle carrying the consignment and not to move the same until further orders, when compared with an order of detention in Form GST MOV-06, (that has not been passed in this case). In the former situation, the risk and responsibility for the consignment remains with the transporter/consignor whereas, in the latter, and upon passing an order of detention, the risk and responsibility in regard to the consignment shifts upon the GST Department. This transition has not transpired in this case and thus to say that Form GST MOV-02 would tantamount to an order of detention, is entirely misconceived. 17. In light of the discussions in the paragraphs supra, I find that the procedure that has been followed by the respondents in this matter is contrary to statutory requirements as well as the instructions issued by the Commissioner. The submissions of the revenue, that the Circular has no statutory force and the instructions thereunder are to be taken as fle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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