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TMI Blog2024 (7) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... any Ltd. [ 2023 (1) TMI 1026 - GUJARAT HIGH COURT] , while considering the provisions of Section 129, it was held ' it can be gathered that there does not appear to be any ill-intent on the part of the petitioner to use the expired e-Way bill. The company is situated at Howrah, West Bengal and the place of delivery was Jamnagar, Gujarat and in transit, this e-Way bill has expired.' The respondent authorities having not assigned the reasons, the impugned orders are not sustainable and are accordingly quashed and set aside. The matter is remanded back to respondent No. 2 to pa fresh de novo order after giving opportunity of hearing to the petitioner by assigning reasons in detail taking into consideration the above decisions while passing the order in accordance with law. Petition allowed partly. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Mr Bharat Raichandani With Mr Love Sharma For Mr Aditya R Parikh (8769). For the Respondent(s) No. 1 : Ms Shrunjal Shah, AGP. For the Respondent(s) No. 2: Mr Utkarsh R Sharma (6157). ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat Goods Service Tax Act, 2017 (for short the GST Act ). 3.2 It is the case of the petitioner that the petitioner entered into agreement with Sandhya Container Movers, Mumbai for transportation of tyres, tubes and flaps from its warehouse located at Mumbai to its Halol Plant. The petitioner transported 20160 Kg. of natural rubber to its Halol Plant on 04th November, 2020 along with the E-invoice and E-way bill. 3.3 During the transport of the said goods by the Truck No.MH-46BB-2489, GST Officer, Vadodara-1 intercepted the conveyance and recorded statement of the driver of the Truck carrying the goods under Form MOV-01. Thereafter the order for inspection of the Truck and the goods were issued in Form GST MOV-02 dated 04th November, 2020. 3.4 During the inspection, it was recorded that the goods were accompanied by E-way Bill No. 291235216649 and E-invoice dated 29th October, 2020. 3.5 It was found in the inspection that E-way bill was not valid and therefore the goods and the Truck was detained under Section 68 (3) and show-cause notice under Section 129 (3) of the GST Act was issued in Form GST MOV-07 dated 05th November, 2020 for calling upon the petitioner to pay tax and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o release the goods and conveyance and therefore, the respondent authority could not have passed the order on assurances given by the petitioner for payment of tax and penalty. 5.5 It was submitted that the appellate authority, without considering the submissions made by the petitioner, has confirmed the order of interest and penalty after recording of facts and reproducing Rule 138 of the Rules in the impugned order. It was further submitted that thus both the orders i.e. MOV-09 as well as appellate order are non-speaking order and are liable to be set aside. 5.6 Learned advocate for the petitioner referred to and relied upon the decision of the Bombay High Court in case of Velcord Textiles v. Union of India reported in 1999 (111) ELT 351 (Bom), wherein it is held that right to reason is an indispensable part of a sound judicial system, reasons, at least, sufficient to indicate an application of mind to the matter before the Court. It was, therefore, submitted that the impugned order are without reasons and therefore, liable to be quashed and set aside. 6. On the other hand, learned advocate for the respondents submitted that the impugned order are passed for breach of Rule 138 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 191 (All.); (iii) Neuvera Wellness Ventures Pvt. Ltd. v. State of Gujarat reported in 2019 (26) G.S.T.L. 3 (Guj.) 8.1 Considering the above decisions, this Court in case of Dhabriya Polywood Ltd. v. Union of India reported in 2022 (64) G.S.T.L. 259 (Guj) has relied on the Circular of the CBIC dated 14th September, 2018 and has held as under. 7. The circular makes it clear that in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, the proceedings under Section 129 of the CGST Act may not be ordinarily initiated, more particularly, in the situation, as highlighted in para 5 of the circular. 8. We are of the view that the goods of the writ applicant fall within Clause 5 of the circular referred to above. The manner in which the writ applicant has proceeded so far and also having regard to the fact that very promptly he brought to the notice of the authority concerned and admitted its mistake, we would like to give the writ applicant some benefit of doubt. 9. In view of the aforesaid, this writ application succeeds and is hereby allowed. The impugned notice issued by the respondent No.3 in Form GST MOV 07 dated 12th Apri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of an amount equal to five per cent 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 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: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. (2) xxx xxx xxx (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). (4) No penalty shall be determined under subsection (3) without giving the person concerned an opportunity 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 such g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been detained at 6:05 p.m. at Amirgadh on 27.9.2018, after about expiry of 48 years. This case is squarely covered by the decision of this Court which has not been further challenged and even otherwise, from the facts which are robust in nature, it can be gathered that there does not appear to be any ill-intent on the part of the petitioner to use the expired e-Way bill. The company is situated at Howrah, West Bengal and the place of delivery was Jamnagar, Gujarat and in transit, this e-Way bill has expired. 8.3 In case of VSL Alloy (India) Pvt. Ltd. (supra), the Allahabad High Court has held as under. 14. In the present case, all the documents were accompanied the goods, details are duly mentioned which reflects from the perusal of the documents. Merely of none mentioning of the vehicle no. in Part-B cannot be a ground for seizure of the goods. We hold that the order of seizure is totally illegal and once the petitioner has placed the material and evidence with regard to its claim, it was obligatory on the part of the respondent No. 2 to consider and pass an appropriate reasoned order. In this case, no reasons are assigned nor any discussion is mentioned in the impugned order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances, the petitioners would be entitled to the release of the conveyance as well as the goods in question subject to compliance of clause (c) of section 129 (1) of the CGST/GGST Acts. 11. For the foregoing reasons, the petition partly succeeds and is, accordingly allowed to the following extent: The impugned order dated 2.4.2019 passed by the second respondent (Annexure-H to the petition) is hereby quashed and set aside. The matter is restored to the file of the second respondent who shall decide the same afresh in accordance with law after giving an opportunity of hearing to the petitioner. It need not be stated that the second respondent shall pass a speaking order, dealing with all the contentions raised by the petitioners. In the meanwhile, as the goods in question are perishable goods, for the purpose of grant of immediate relief to the petitioners, the goods in question together with truck No.MH-43-U-8620 are ordered to be released, subject to the petitioners furnishing security by way of bond of an amount of rupees twelve lakhs (Rs.12,00,000/-) to the respondent authorities. It is clarified, that this court has directed the petitioners to furnish security of Rs.12,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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