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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 ..... arned Additional Government Pleader for the respondents, I am of the categoric view that there has been no detention that has even been ordered. 3. Let us see the facts in issue: i) The consignment in question was intercepted on 13.08.2022 at 2.15 a.m. and immediately upon interception, statement of the driver in Form GST MOV-01 was issued on the same day. ii) Simultaneous there with, Form GST MOV-02, being an order of physical verification/inspection of the conveyance, goods and documents, was also issued. iii) The reason for interception was the presumption of the officer that the goods were proposed 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 not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orting the goods. (2) [*******] (3) The proper officer detaining or seizing goods or conveyance shall issue a notice within seven days of such detention or seizure, specifying the penalty payable, and thereafter, pass an order within a period of seven days from the date of service of such notice, for payment of penalty under clause (a) or clause (b) of sub-section (1). . . . . x) That apart, Section 129(3) requires a notice to be issued within 7 days, stipulating the penalty payable for the alleged discrepancy and in this case, no notice was issued till 24.08.2022, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y bill, interception and inspection of the conveyance and/or goods, the proper officer under rule 138B of the CGST Rules shall be the officer who has been assigned the functions under sub-section (3) of section 68 of the CGST Act vide Circular No. 3/3/2017 - GST, dated 05.07.2017. (d) Where the person in charge of the conveyance fails to produce any prescribed document or where the proper officer intends to undertake an inspection, he shall record a statement of the person in charge of the conveyance in FORM GST MOV01. In addition, the proper officer shall 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the provisions of section 49 of the CGST Act. (i) Where the owner of the goods, or the person authorized by him, or any person other than the owner of the goods comes forward to get the goods and the conveyance released by furnishing a security under clause (c) of sub-section (1) of section 129 of the CGST Act, the goods and the conveyance shall be released, by an order in FORM GST MOV-05, after obtaining a bond in FORM GST MOV-08 along with a security in the form of bank guarantee equal to the amount payable under clause (a) or clause (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lectronic 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. Once an order of confiscation of goods is passed in FORM GST MOV-11, the order in FORM GST MOV-09 passed earlier with respect to the said goods shall be withdrawn. (o) An order of confiscation of conveyance shall be passed in FORM GST MOV-11, after taking into consideration 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 eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Board at an early date. Hindi version will follow. 6. Applying the procedure set forth in the Circular to the sequence of events arising from the case on hand, I note the following: Form Description Statutory/ time line as per circular Date of aforesaid event in this case GST MOV-01 Statement of owner/driver/person incharge of the goods and conveyance 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 this case GST MOV-06 Order of detention under Section 129 of the Act after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 statutory sanction in pursuance of the aims and objects of the Goods and Services Act. Thus, it is imperative that such intrusive acts be carried in strict compliance of the statutory provisions in this regard. Thus, and as the detention is a pre-condition/req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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