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TMI Blog2024 (11) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... wever only on the ground that on physical verification PVC Aluminum Mixed Cable (Feeder Cable) was found, the goods were detained. Further before the appellate authority, new ground in respect of under valuation of the goods, was taken. The Commissioner, Commercial Tax, UP by way of Circular dated May 9, 2018 has specifically stated that no goods shall be detained on the ground of under valuation. In the present case, the respondent authority has failed to bring on record any material that the goods mentioned in the tax invoice accompanying with the goods, has different HSN Code and different rate of tax or mentioned in the detention memo dated 1.10.2019. Once this fact is not disputed that HSN Code and rate of tax is similar, no adverse in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no intention to evade the payment of tax. Hence the proceeding is illegal and arbitrary in manner. He submits that against the proceedings under Section 129 of the Act, an appeal was filed in which new ground was taken that the goods in question was under valued. He submits that no show cause notice was issued in respect of under valuation of the goods and for the first time the said plea was taken before the appellate authority. He submits that the Commissioner, Commercial Tax on 9.5.2018 has issued a circular stating therein that the goods shall not be detained on the ground of under valuation. 4. In support of his submission, he relied upon the judgement of this Court passed in Writ Tax No. 33 of 2022 (M/s Shamhu Saran Agarwal and compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43;ित ई. वे बिल एवं नियम 138 ए के अन्तर्गत वांछित अन्य प्रपत्र होने पर कर की दर के विवाद अथवा अवमूल्यन के आधार पर सामान्यतः माल का अधिग्र& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25;मिश्नर (कार्यपालक) द्वारा खण्ड स्तर से नियमानुसार कार्यवाही करायी जाएगी। 5. Furthermore, Mr. Agarwal, appearing for the petitioner, has relied upon a judgment of the Kerala High Court in the case of Hindustan Coca Cola Private Limited vs. Assistant State Tax Officer reported in 2020 NTN (73)-58 wherein the Kerala High Court held as follow:- 7. From the perusal of the aforementio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was not competent to carry out such detention. 7. In the event of under valuation, appropriate notice under Sections 73 or 74 of the Uttar Pradesh Goods and Service Tax Act, 2017 (hereinafter referred to as the Act ) is required to be issued as per the procedure provided therein. If the Court holds such a detention to be valid, it would be open to the authorities to carry out detention on their whims and fancies. The detention of the goods in such a scenario is not envisaged under the Act and the officers have not been vested with such a power to detain the goods and thereafter impose penalty under Section 129 of the Act. Specific provisions have been provided for detection of under valuation and the GST officials have to adhere to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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