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TMI Blog2023 (3) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... been determined and the penalty has been levied only on the basis of a survey by taking recourse under Section 130 of the GST Act and not taking a recourse to Section 74, the order impugned is clearly unsustainable. Whether penalty can be levied only on the allegations that at the time of verification of goods, the goods in excess were found at the premises? - HELD THAT:- On a plain reading, the scope of Clause (ii) of sub-section (1) of Section 130 is that any assessee who is liable to pay tax and does not account for such goods, after the time of supply is occasioned, would be liable to penalty under Clause (ii). Analyzing Clause (iv) of sub-section (1) of Section 130, the contravention of any provision of the Act or the Rules should be in conjunction with an intent to evade payment tax and penalty can be levied by invoking Clause (iv) only when the department establishes that there were a contravention of the Act and Rules coupled with the intent to make payment of tax . There is no such allegation in the show cause notice or any of the orders, I have no hesitation in holding that even the Clause (iv) of sub-section (1) of Section 130 would not be attracted in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the portal of the department including the GSTR-3B. It is alleged that on 29.09.2018, the Deputy Commissioner, (SIB), Commercial Tax, Mirzapur Division, Mirzapur in purported exercise of powers under Section 67(1) and 67(2) of the GST Act inspected the registered business premises and drew a Panchanama on 29.09.2018 (Annexure No.1). On the same day, a seizure memo was also prepared, which is contained as Annexure No.2 to the writ petition. 4. It is argued that the petitioner was compelled to deposit an amount of Rs.52,20,000/- for getting the seized goods released. Thereafter, the petitioner was served with summons on 29.09.2018 and the petitioner was called upon to produce the records relating to the purchase for the year 2017-18 and 2018-19. The petitioner was once again issued summons under Section 70 of the Act on 27.12.2018 whereby certain documents were called from the petitioner. The petitioner claims to have produced the documents on the date fixed, however, an order came to be passed thereafter without issuance of any show cause notice to the petitioner levying the tax liability of Rs.26,10,000/- and further an amount of Rs.26,10,000/- was determined as penalty to be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of M/s Metenere Limited vs Union of India and another; Writ Tax No.360 of 2020, decided on 17.12.2020. He further argues that after the passing of the orders, on the same grounds, proceedings have been initiated under Section 74 of the Act and an order has already been passed against the petitioner, against which, the petitioner is availing the remedies. He argues that the same is not the subject matter of the present writ petition and has been brought to the notice of this Court only to apprise that no penalty could have levied in view of the mandatory provisions contained in Section 75 (13) of the GST Act. 7. During the course of the hearing, this Court vide order dated 21.03.2023 had called upon the Counsel for the respondent to inform whether a show cause notice was issued under Section 130(4) of the GST Act or not? In response to the said order, the learned Standing Counsel has produced the instructions and argues that prior to passing of the impugned order, a show cause notice dated 27.12.2018 was issued to the petitioner, which was served upon the accountant of the firm/ company on 29.12.2018. Learned Standing Counsel has also produced a copy of the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been decided by this Court in the case of M/s Metenere Limited (Supra), it is clear that the entire exercise resorted to under Section 130 of the GST Act for assessment/ determination of the tax and the penalty is neither stipulated under the Act, nor can be done in the manner in which it has been done, more so, in view of the fact that the department itself had undertaken the exercise of quantifying the tax due, by taking recourse under Section 74. 13. As the entire tax has been determined and the penalty has been levied only on the basis of a survey by taking recourse under Section 130 of the GST Act and not taking a recourse to Section 74, the order impugned is clearly unsustainable. 14. Coming to the Issue no.2, Section 130 of the GST Act contemplates and provides for levy of the penalty, in the event, any of the conditions so mentioned in Section 130(1) are made out. Section 130(1) reads as under: Section 130. Confiscation of goods or conveyances and levy of penalty- (1) Notwithstanding anything contained in this Act, if any person - (i) supplies or receives any goods in contravention of any of the provisions of this Act or the rules made thereunder with intent to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 169. Service of notice in certain circumstances.- (1) Any decision, order, summons, notice or other communication under this Act or the rules made there under shall be served by any one of the following methods, namely:- (a) by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or (b) by registered post or speed post or courier with acknowledgment due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or (c) by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or (d) by making it available on the common portal; or (e) by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried o ..... 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