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TMI Blog2023 (9) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... ye of law without any cojent matrial on record, which shows that perverse action has been taken against the petitioner. Once the owner of the goods has come forward the levy of penalty under section 129(1)(b) of the GST Act cannot be justified as section 129(1)(a) of the GST Act provides that where the owner of the goods come forward for payment of penalty the amount of tax payable should be 200%, whereas in the case in hand the penalty has been levied to the tune of 200% of the value of the goods. In M/S RIYA TRADERS VERSUS STATE OF U.P. AND ANOTHER [ 2023 (1) TMI 1238 - ALLAHABAD HIGH COURT] and in M/S MARGO BRUSH INDIA AND OTHERS VERSUS STATE OF U.P. AND ANOTHER [ 2023 (1) TMI 1237 - ALLAHABAD HIGH COURT] the Division Bench of this Court has held that proceedings under section 129(1)(b) is bad when the owner of the goods comes forward to pay the penalty. The impugned order passed by the respondent no.1 under the provisions of Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 affirming the order dated 21.10.2020 passed by the respondent no.2 cannot be sustained and are hereby set aside - petition allowed. - Hon'ble Piyush Agrawal, J. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, e-way bill, GR as psrescribed under the GST Act; neither any discrepancy what so ever was found at the time of interception of the goods nor at physical verification of the goods. He further submits that the goods have been detained on the ground that the goods were not on the regular route but on a different route and the truck driver had given a statement that instead of Robertsganj the goods were to be unloaded at Ghaziabad as well as no document was produced for unloading the goods at Ghaziabad. 6. He further submits that at the time of physical verification the goods were found as Arecanut/Betul Nut but without any rhyme or reason the goods were alleged to be different and treated the same as Processed Betul Nut to which higher rate of tax is applicable. He further submits that neither any adequate report has been obtained nor any expert report were obtained and to the contrary at the time of physical verification the goods found which were uploaded in MOV 04 do not refer to processed betul nut except the Arecaut/betul nut, therefore the view taken by the authorities are illegal, without any basis, therefore, bad. 7. He further submits that the respondents have brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments learned counsel for the petitioner has summarized his submission as under: (i) The goods were accompanying with all genuine documents and no discrepancy has been found in it. (ii) At the relevant time of purchases the parties were registered dealers, therefore goods cannot be seized. (iii)The purchaser has come forward, therefore, the enhancement of penalty cannot be made and order should have been passed under section 129(1)(a) of the Act. (iv) The additional evidence cannot be accepted at behest of the State-respondents under Rule 112 of GST Rules. (v)Subsequent alleged statement of driver cannot be relied upon as not uploaded in MOV 01. (vi) The authority has no authority to issue supplementary notice after MOV 07 dated 30.9.2020. In view of the above mentioned facts and the submissions he prays that the impugned order deserves to be set aside and the writ petition deserves to be allowed giving all consequential benefits to the petitioner. 11. Per contra, Sri Rishi Kumar, learned ACSC supports the impugned orders. He submits that the petitioner in a member of syndicates, involved in tax evasion. He further submits that after interception of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form, it clearly indicates that GR number and date, tax invoice number and date, consigner/seller's name and purchaser/consignee's name, item with disclosed amount and e way bill number were mentioned and no discrepancy has been pointed out. Thereafter almost after five days the physical verification of the goods was done on 5.10.2020 and after verification the same was recorded in GST MOV 04, copy of which has been annexed as Annexure 3 at page 49 of the writ petition wherein GR number and date, notice number and date, name of the accommodity disclosed in the invoice was mentioned and thereafter name of the goods, accommodity found were also mentioned. The quantity of the goods as disclosed in the invoice and after physical verification no difference was found. Thereafter on the same date detention order was passed which was recorded in the form GST MOV 06. 16. On perusal of the detention memo. It shows that the goods in question was detained on the ground that driver gave a statement that goods were to be unloaded at Ghaziabad and not at Robertsganj as disclosed in the companying documents. Further a statement was given by the driver that this was second round of trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er) decided on 17.5.2022 has held that even during the validity of first e-way bill the subsequent e way bill was generated and no adverse inference was drawn against the petitioner. The said judgment has been assailed by the State before the Apex Court in Special Leave Petition No. 20769 of 2023 (Additional Commissioner Grade-2 (Appeal) Fifth Commercial Tax Anr. Vs Sleevco Traders) which has been dismissed on 5.7.2023. 20. In the case in hand during the validity of the first e-way bill the subsequent e-way bill was generated and submitted before the detention authority, i.e. before the expiry of earlier e-way bill, therefore the seizure cannot be justified. 21. Once the authority have recorded the statement given by the truck driver on 30.9.2020 in MOV 01 (annexure 2) that the goods were to be unloaded at Robersganj and then the subsequent statement of the truck driver alleging to unload the goods at Ghaziabad instead of Robersganj cannot be recorded by any stretch of imagination and not permissible in the eye of law without any cojent matrial on record, which shows that perverse action has been taken against the petitioner. 22. The authorities have issued a show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is vitiated as it is in the teeth of the law laid down by this Court. 25. Once the mandate has been given by this Court on 18.1.2021 about non accepting of the additional evidence at the behest of the Revenue the impugned order cannot be sustained. The Apex Court in the Mohinder Singh Gill (supra) has held that fresh reason existing outside the order passed cannot be accepted. In view of the aforesaid law laid down by the Apex Court as well as this Court the first appellate authority is vitiated and is liable to be set aside. 26. Record further reveals that at the time of transaction i.e. 27.9.2020 when the purchased goods were on its transit, the goods were detained for the first time on 30.9.2020. The petitioner was duly registered under the GST Act. It is brought on record that the registration of the petitioner was cancelled by way of additional evidence on 19.10.2020. In other words at the time of interception, detention, seizure, passing of the impugned order was much prior to the cancellation of the registration of the petitioner. 27. Once the owner of the goods has come forward the levy of penalty under section 129(1)(b) of the GST Act cannot be justified as sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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