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TMI Blog2025 (1) TMI 1515X X X X Extracts X X X X X X X X Extracts X X X X ..... on 130 of the of TNGST Act due to the non-obstante clause is concerned, it would be applicable with regard to the detention and seizure of goods and not for the confiscation, i.e., the non-obstante clause available in Section 129 would be applicable only for the seizure. In other words, if there is any provision contained in the Act with regard to the seizure in any other manner, Section 129 will supersede over the same. Therefore, as far as confiscation is concerned, the said non- obstante clause available in Section 129 will not supersede the provisions of Section 130, since Section 129 only talks about the seizure of the goods and not about confiscation. Thus, both these Sections are independent in nature. In the judgment of Synergy Fertichem [2019 (12) TMI 1213 - GUJARAT HIGH COURT], it has been held that any opinion of the authority to be formed is not subject to objective test. The purpose of invoking Section 130 of the Act at the very threshold, the authorities need to make out a very strong case. Merely on suspicion, the authorities may not be justified in invoking Section 130 of the Act straightway. In this case, the officials had formed clear cut prima facie opinion to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle was stopped by the local police near Panruti and the gold ornaments were seized. After seizure of the gold ornaments, the statement of one Mr. Jayakrishnan was recorded in Form GST MOV-01 on 26.07.2024. Thereafter, the notice under Section 129 (3) of the TNGST Act/CGST Act in Form GST MOV-07 was issued. 2.6 The learned Senior counsel would contend that Rule 138 (4) of CGST Rules, 2017, exempts the e-way bill, in the event if the goods were carried for exhibition or showcasing the samples to the customers, i.e., other than by way of sale. That apart, Rule 55 of CGST Rules permits the petitioner to carry the delivery challan with the goods without e-way bill. In such case, Since no sale was taken place, the goods were carried with the delivery challan, which is duly in accordance with the provisions of Rule 138 (4) read with Rule 55 of the CGST Rules. Hence, he would submit that the said goods were carried only for display purpose and not for sale and thus, there is no need for any invoices. 2.7 Further, he would submit that on 27.07.2024, the Gems and Jewellery Export Permission Council had alloted the Stall Nos.48 and 482B to the petitioner in IIJS PREMIERE Exhibition, 2024. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al with "MR/MA" belong to the peittioner. j) The movement of goods to Cuddalore is suspicious as the goods have moved away from the route to Chennai and the reasons are inexplicable. k) The movement of goods to Cuddalore might be for supply to a taxable person at Cuddalore which needs to be found out and the goods are moved in the disguise of display at exhibition. l) The person in charge of transporting the goods does not have proof that he is transporting on behalf of the agent. m) The goods are considered to be goods without original owner. n) It is strongly suspected that there is a possible attempt of evasion. 2.10 With regard to the allegations, the learned Senior counsel made the following submissions: i) The goods were moved only for the display purpose in order to promote the petitioner's market and product and there is no sale or supply involved in the transaction. ii) Further, the purpose of sending the goods to the customers was primarily to get first hand feedbacks from them before participating in the Jewellery show IIJS Premier and inviting them to see more such collection. iii) There is no requirement to generate invoice for transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, in the case on hand, the said provisions of the Act were wrongly invoked by the Officials. Therefore, he requests this Court to quash the impugned notice dated 02.08.2024. In support of his contentions, he referred to the following judgments of the Hon'ble Division Bench of the Gujarat High Court: i) Synergy Fertichem (P) Ltd., vs. State of Gujarat reported in [2019] 112 taxmann.com 370 (Gujarat); ii) Anant Jignesh Shah vs. Union of India reported in [2021] 123 taxmann.com 317 (Gujarat); 3. Respondent's Submissions: 3.1 Per contra, Mr. C. Harsha Raj, learned Additional Government Pleader, appearing for the respondent would strongly opposed for the contentions made by the learned Senior counsel for the petitioner and would submit that in the present case, the goods were moved by the petitioner with the sole intention to evade the payment of tax. 3.2 Further, he would fairly admit that if goods are moved for any purpose, other than the purpose of sale or supply, there is no need for any e-way bill in terms of the provisions of Rule 138 (4) of CGST Rules and also the goods may be moved with the delivery challan in terms of the provisions of Rule 55 of the CGST Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re were many carbon papers for which second copies were not traceable at the business place. v) One of the staff Thiru. Saurabh turned up only last day with the Gold. It was informed that he had taken leave but a statement has been recorded that he was visiting Business places for showing Gold. vi) The House search of Ritesh, Manager and Saurabh was made and no incriminating documents could be collected. vii) The copies of Quotations, Delivery Slips etc., were not traceable at the business place. viii) The DVR of CCTV camera of Tvl. Mukti Gold Private Limited was under repair. The DVR was collected from one Vijay, CCTV repairing person by the Roving Squad officials. On verification the Hard Disk was empty. The Data Retrieval person retrieved the deleted data and found that the Hard Disk was a new one and not related to Tvl. Mukti Gold Private Limited. The CCTV camera was fixed only in October 2023 and there was distant possibility of Hard Disk getting repaired. ix) It is suspected that subsequent to retention of Gold at Cuddalore without documents, Tvl. Mukti Gold Private Limited, Chennai had removed all the incriminating documents at Chennai Office and has also remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Rule 138 (4) read with Rule 55 of the CGST Rules and there is no dispute on this aspect. 7. However, it was contended by the learned Additional Government Pleader appearing for the respondent that in this case, under the pretext of showcasing the Jewellery to the customers to invite them to participate in the Exhibition, the petitioner had attempted to transport the goods for the purpose of sale by evading the payment of tax (GST as well as income tax). 8. According to the petitioner, initially, the goods were transported from the petitioner at Chennai to its Agent at Coimbatore. Thereafter, the Agent took the goods for displaying it to the customers, including M/s. Bhima Gold at Madurai. After displaying the gold, the goods were brought back to the petitioner by its Agent from Dindugal to Chennai. At the en route from Dindugal to Chennai, the goods were intercepted at Panruti by the local police. Thereafter, it was informed to the GST Authorities and subsequently, it was seized and notice under Section 129 of the GST Act was also issued after recording the statements. 9. The respondent suspects the petitioner on the aspect of route. In the statements recorded from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with "MR/MA" belongs to the petitioner. Further, no evidence has been shown to the Officials with regard to the restrictions of usage of seal with "MR/MA". 15. Further, though the petitioner has stated that they have provided the Stock Register, according to the respondent, during the course of investigation at the petitioner's premises at Chennai, neither the stock of gold nor the cash was available. Even the lockers were found to be empty at their business place. 16. That apart, a notice was displayed outside the business place of the petitioner that it was closed from 26.09.2024 to 29.07.2024, for which, no valid reason was given by the staffs. On 27.07.2024 only, the premises was opened by the Manager and thereafter, the inspection was commenced by the Officials. It was also noticed by the Officials that many carbon papers, for which second copy was not traceable, were found at the business place of the petitioner. The DVR of CCTV of that premises was under repair. 17. The petitioner had also removed all the incriminating documents, including the CCTV footage, at their Chennai Office. The statements, with regard to the movement of goods, are found to be contrary from eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and surmise. However, in the present case, it is not that only on the ground that the petitioner diverted the regular route but also on many other ground, based on which, the respondent formed a clear cut opinion and issued notice. 23. Therefore, both the cases, which were relied upon by the learned Senior counsel appearing for the petitioner, may not be applicable for the present facts of the case. 24. When the Officials have raised several issues based on the material evidences collected by them, which are all disclosed in the confiscation notice, this Court, sitting under Article 226 of the Constitution of India, cannot interfere with the said notice issued by the Authorities prior to the filing of any appropriate reply by the petitioner. Therefore, it is for the petitioner to file their reply, along with the material evidences, by clarifying all the issues raised by the Officials. Thereafter, it is for the respondent to consider the said reply and pass appropriate orders. 25. For all the above reasons, this Court is of the view that there is no merits in this writ petition. Therefore, this writ petition is liable to be dismissed. Accordingly, this petition is dismissed by gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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