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TMI Blog2023 (8) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... or where goods or services or both supplied are found to be deficient, the registered person, who has supplied such goods or services or both, may issue to the recipient [one or more credit notes for supplies made in a financial year] containing such particulars as may be prescribed - the goods which are being returned need not necessarily accompany a Credit Note. The Credit Note or Debit Note as the case may be are intended only for adjustment of tax liabilities on account of return of the goods and where tax charged in that tax invoice is found to exceed the taxable value or tax payable in respect of such supply. The detention of the goods was per se illegal and unwarranted particularly in the light of the fact that the goods accompanied the e-way bills, which were generated for return of the goods - the system and procedure cannot be used against the petitioner particularly in the light of the fact that the detention itself was illegal. Credit note under Section 34 is not required to be issued at the stage, when the goods were being returned without even they having been received by the recipient. Issuance of Credit Note and/or Debit Note under Section 34(1) of the CGST Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and Services Tax Act, 2017 read with subsection (3) of section 68 of the Central Goods and Services Tax Act, 2017 by issuing an order of detention in FORM GST MOV 06 and the same was served on the person in charge of the conveyance on 30.12.2022(date). 3. The case of the petitioner is that the petitioner had transported the consignment of solar power generating systems/solar panels of different descriptions to the buyer in Tiruppur under four different invoices as detailed below: Sl.No. Date Invoice No. Amount (in Rs.) 1. 25.12.2022 102233014804 73,396/- 2. 25.12.2022 102233014805 1,30,314/- 3. 25.12.2022 102233014806 1,62,374/- 4. 25.12.2022 102233014807 1,37,050/- 4. For the above invoices, corresponding e-way bills were also generated. It is submitted that the when the goods were being transported from Chennai to Tiruppur, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that the petitioner had voluntarily paid the amount to by-pass the Show Cause Notice proceeding that was issued on 30.12.2022 in Form GST MOV-07. It is further submitted that in the Show Cause Notice dated 30.12.2022, the petitioner was also called upon for a personal hearing on 02.01.2023 at 12.00 p.m. Thus, the question of passing a final order under Section 129(3) in Form MOV 09 did not arise as the petitioner paid the penalty and moved the goods. 13. The learned Government Advocate for the respondents has placed reliance on the decision of the Hon'ble Allahabad High Court in the case of M/s.ASP Traders Vs. State of U.P, [ 2022] 141 taxmann.com 504 (Allahabad). 14. The learned cousel for the petitioner would submit that the payment that has been made was not a voluntary payment, as the goods had to be taken back for being salvaged as otherwise it would have resulted in total loss. 15. The learned counsel for the petitioner has placed reliance on the decision of the Kerala High Court rendered in Hindustan Steel and Cement Vs. Assistant State Tax Officer , [2022] 141 taxmann.com 342. 16. I have considered the arguments advanced by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was being re-transported back to the petitioner's factory as is contemplated under Section 34 of the respective GST enactments. 21. Under Section 34(1) of the CGST Act, where one or more tax invoices have been issued for supply of any goods or services or both and the taxable value or tax charged in that tax invoice is found to exceed the taxable value or tax payable in respect of such supply, or where the goods supplied are returned by the recipient, or where goods or services or both supplied are found to be deficient, the registered person, who has supplied such goods or services or both, may issue to the recipient [one or more credit notes for supplies made in a financial year] containing such particulars as may be prescribed. 22. Under Section 34(2) of the CGST Act, any registered person who issues a Credit Note in relation to a supply of goods or services or both shall declare the details of such Credit Note in the return for the month during which such Credit Note has been issued but not later than September following the end of the financial year in which such supply was made, or the date of furnishing of the relevant annual return, whichever is earlier, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wner of the goods comes forward for payment of such tax and penalty; (b) on payment of the applicable tax and penalty equal to the fifty percent of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five percent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty; (c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed. (2) The provisions of subsection (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances. (3) the proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c). 142. Notice and order for demand of amounts payable under the Act (1) ..... (2) ..... (3) Where the person chargeable with tax makes payment of tax and interest under sub-section (8) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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