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TMI Blog2023 (12) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... g the gold ornaments of the petitioner worth Rs. 77,96,650.10/- under Section 68 (3) of the J&K Goods and Services Tax Act, 2017 ('the Act of 2017' for short) read with Section 68(3) of the Central Goods and Services Tax Act, 2017 ('CGST Act' for short) on 03.01.2020 at 1.30 at Civil Airport Road, Jammu. The said officer on verification of the documents found that the gold ornaments were accompanied by delivery note which as per the respondents, was not a valid document for movement of goods. Accordingly, the officer detained the said vehicle along with the goods loaded therein and issued order of detention under Section 129 (1) of the Act of 2017 and CGST Act read with Section 68 (3) of the Act of 2017 in Form GST Mov-06 and the same was served on the petitioner-owner of the firm who caused his appearance along with his counsel for release of goods on 03.01.2020. Subsequently, a notice was issued in GST Mov-07 to show cause as to why tax and penalty be not levied on the said goods in terms of Section 129 (1) of the GST Act, 2017. In response to the said notice, the petitioner expressed his consent to pay applicable tax and penalty whichever is applicable stating that the goods wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of movement of goods and not for supply, therefore, in the absence of supply, no penalty under Section 129 of the Act can be imposed. It was submitted that under the threat of dire consequences the STO obtained a cheque forcibly from the petitioner amounting to Rs.4,67,860.00 failing which the petitioner will have to face many problems at the hands of the STO. 5. The appellate authority, after hearing the parties vide order impugned dated 31.08.2022, dismissed the appeal. The relevant extract of the impugned order is reproduced hereunder: "In the instant case, there was no prescribed delivery challan accompanying the goods but instead a self invented delivery note accompanied the goods which is clear violation of the rule. Besides Circular No. 10/10/2017 GST nowhere provides any substitute for the prescribed delivery challan. For the reasons discussed in above paras I am of the considered view that the proper officer was justified in passing the impugned order which does not suffer from any legal infirmity. Accordingly, I find no merit in the appeal which is accordingly dismissed". The petitioner herein has assailed order supra in the instant writ petition. 7. Heard learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity of being heard. (5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded. (6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided under subsection (1) within seven days of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of Section 130 Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer" 9. From a perusal of subsection (1) of the aforesaid provisions, it is clear that where any person transports any goods or stores any goods while they are in transmit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released on payment of the applicable tax and penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, where the transportation is for supply to the consignee; (viii) place of supply, in case of inter-State movement; and (ix) signature". 11. On the other hand, the petitioner has submitted that delivery note and delivery challan is one and the same thing. In order to answer this question, let us understand the meaning of the term 'delivery note' and 'delivery challan'. A delivery note is a mere document that accompanies a shipment of goods. Delivery challan, on the other hand, is issued while making a delivery of goods to the buyer and have an impact on the inventory levels since it decreases the inventory stock. 12. Rule 138 (A)(1) of the GST Act, 2017 provides that the person in charge of the conveyance shall carry (a) the invoice or bill of supply or delivery challan as the case may be and (b) a copy of the e-way bill or the e-way bill number, either physically or mapped to a Radio Frequency Identification Device embedded to the conveyance in such manner as may be notified by the Commissioner 13. From the perusal of aforesaid provisions as well as the literal meaning of 'delivery note' and 'delivery challan', we find that there is a lot of difference between delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of supply, the supplier shall issue a tax invoice after delivery of goods". 18. A combined reading of the above provisions indicates that the goods which are taken for supply on approval basis can be moved from the place of business of the registered supplier to another place within the same State or to a place outside the State on a delivery challan along with the e-way bill wherever applicable and the invoice may be issued at the time of delivery of goods. For this purpose, the person carrying the goods for such supply can carry the invoice book with him so that he can issue the invoice once the supply is fructified. 19. The aforesaid provisions further clarified that all such supplies, where the supplier carries goods from one State to another and supplies them in a different State, will be inter-state supplies and attract integrated tax in terms of Section 5 of the Integrated Goods and Services Tax Act, 2017. It is also clarified that this clarification would be applicable to all goods supplied under similar situations. 20. From the perusal of aforesaid provisions, it is clear that the same does not provide for any substitute to the prescribed delivery challan. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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