GST Circular on detention / confiscation of goods & conveyances: Analysis

S. Kannan B.Com., LL.B 25 Oct 2018 8,958 Views 0 comment Print Goods and Services Tax | Articles

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Easy reference GST Circular 41 (Procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances

Procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances-

Reference : Circular No. 41-GST dated 13.04.2018

Para	Issues/ Form Number	Procedure/ Solution
2(b)	Mode of E Way bill is valid	An e-way bill number may be: Available with the person in charge of the conveyance (or) in the form of a printout, sms (or) it may be written on an invoice. All these forms of having an e-way bill are valid
2(c )	CGST Rule 138-B, CGST Act S.68 and CGST Circular 3 dt 05.07.2017	Defines proper officer for interception and Inspection of Conveyance/ Goods.
	Following Forms prescribed in the course of Interception, inspection, Seizure and Release the Conveyance / Goods
2(d)	GST Form MOV-1 ( Recording Statement – Cause of action )	Where the person in charge of the conveyance fails to produce any prescribed document (or) where the proper officer intends to undertake an inspection, he shall record a statement of the person in charge of the conveyance in FORM GST MOV-01
	MOV-2 ( Order for physical verification / inspection of conveyance at a specified place)	In addition, the proper officer shall issue an order for physical verification / inspection of the conveyance, goods and documents in FORM GST MOV-02, requiring the person in charge of the conveyance to station the conveyance at the place mentioned in such order and allow the inspection of the goods.
	EWB -03- “PART-A“ ( prepare report –upload in the common portal)	The proper officer shall, within twenty four hours of the aforementioned issuance of FORM GST MOV-02,: prepare a report in Part A of FORM GST EWB-03 and upload the same on the common portal
2(e)	Conclude inspection proceeding- Time limit	Within a period of three days(substituted for the word’ three working days by CGST circular no.49 dated 21.06.2018) from the date of issue of the order in FORM GST MOV-02, the proper officer shall conclude the inspection proceedings, either by himself or through any other proper officer authorised in this behalf
	MOV-3	Where circumstances warrant such time to be extended, he shall obtain a written permission in FORM GST MOV-03 from the Commissioner or an officer authorized by him, for extension of time beyond three working days and a copy of the order of extension shall be served on the person in charge of the conveyance.
2(f)	MOV- 04 ( Report on findings of Physical verification / inspection)	On completion of the physical verification/inspection of the conveyance and the goods in movement, the proper officer shall prepare a report of such physical verification in FORM GST MOV-04 and serve a copy of the said report to the person in charge of the goods and conveyance.
	EWB -03- “PART-B “ (Inspection final report –upload in the common portal)	The proper officer shall also record, on the common portal, the final report of the inspection in Part B of FORM GST EWB-03 within three days of such physical verification / inspection.
2(g)	MOV- 05 (Release Order)	Where no discrepancies are found after the inspection of the goods and conveyance, the proper officer shall issue forthwith a release order in FORM GST MOV-05 and allow the conveyance to move further
	MOV-06 [ Detention / Seizure Order] Refer proviso u/s 129 (1)(c)	Where the proper officer is of the opinion that the goods and conveyance need to be detained under section 129 of the CGST Act, he shall issue an order of detention in FORM GST MOV-06
	MOV- 07 ( Notice u/s 129(3) specifying the tax and penalty payable )	And a notice in FORM GST MOV-07 in accordance with the provisions of sub-section (3) of section 129 of the CGST Act, specifying the tax and penalty payable. The said notice shall be served on the person in charge of the conveyance
2(h)	MOV- 05 ( Release order after payment of tax and penalty paid)	Where the owner of the goods or any person authorized by him comes forward to make the payment of tax and penalty as applicable under clause (a) of sub-section (1) of section 129 of the CGST Act, (or) where the owner of the goods does not come forward to make the payment of tax and penalty as applicable under clause (b) of sub-section (1) of the said section, the proper officer shall, after the amount of tax and penalty has been paid in accordance with the provisions of the CGST Act and the CGST Rules, release the goods and conveyance by an order in FORM GST MOV-05
	MOV- 09 (uploading Demand Order) and person making Payment in the concerned person’s Electronic ledge)	Further, the order in FORM GST MOV-09 shall be uploaded on the common portal and the demand accruing from the proceedings shall be added in the electronic liability register and the payment made shall be credited to such electronic liability register by debiting the electronic cash ledger or the electronic credit ledger of the concerned person in accordance with the provisions of section 49 of the CGST Act.
2(j)	MOV- 09 ( when the person filed objections, the proper officer shall consider and pass a speaking order in MOV-09)	Where any objections are filed against the proposed amount of tax and penalty payable, the proper officer shall consider such objections and thereafter, pass a speaking order in FORM GST MOV-09, quantifying the tax and penalty payable. On payment of such tax and penalty, the goods and conveyance shall be released forthwith by an order in FORM GST MOV-05. The order in FORM GST MOV-09 shall be uploaded on the common portal and the demand accruing from the order shall be added in the electronic liability register and, upon payment of the demand, such register shall be credited by either debiting the electronic cash ledger or the electronic credit ledger of the concerned person in accordance with the provisions of section 49 of the CGST Act.
2(I)	MOV- 08 (Security bond for Release the goods/ conveyance)	Where the owner of the goods, or the person authorized by him, or any person other than the owner of the goods comes forward to get the goods and the conveyance released by furnishing a security under clause (c) of sub-section (1) of section 129 of the CGST Act, the goods and the conveyance shall be released, by an order in FORM GST MOV-05, after obtaining a bond in FORM GST MOV-08 along with a security in the form of bank guarantee equal to the amount payable under clause (a) or clause (b) of sub-section (1) of section 129 of the CGST Act. The finalisation of the proceedings under section 129 of the CGST Act shall be taken up on priority by the officer concerned and the security provided may be adjusted against the demand arising from such proceedings.
2(k)	MOV- 10 ( Notice u/s.130, proposing confiscation of the Goods and conveyance and imposition of penalty)	In case the proposed tax and penalty are not paid within seven days from the date of the issue of the order of detention in FORM GST MOV-06, action under section 130 of the CGST Act shall be initiated by serving a notice in FORM GST MOV-10, proposing confiscation of the goods and conveyance and imposition of penalty.
2(l)	MOV- 10 (Notice demanding tax, penalty and fine u/s.130 read with S 122)	Where the proper officer is of the opinion that such movement of goods is being effected to evade payment of tax, he may directly invoke section 130 of the CGST Act by issuing a notice proposing to confiscate the goods and conveyance in FORM GST MOV-10. In the said notice, the quantum of tax and penalty leviable under section 130 of the CGST Act read with section 122 of the CGST Act, and the fine in lieu of confiscation leviable under sub-section (2) of section 130 of the CGST Act shall be specified.
		Where the conveyance is used for the carriage of goods or passengers for hire, the owner of the conveyance shall also be issued a notice under the third proviso to sub-section (2) of section 130 of the CGST Act, proposing to impose a fine equal to the tax payable on the goods being transported in lieu of confiscation of the conveyance.
2(m)	Instruction for providing opportunity of hearing.	No order for confiscation of goods or conveyance, or for imposition of penalty, shall be issued without giving the person an opportunity of being
2(n)	MOV-11 ( An order of Confiscation of Goods)	An order of confiscation of “goods” shall be passed in FORM GST MOV-11, after taking into consideration the objections filed by the person in charge of the goods (owner or his representative), and the same shall be served on the person concerned. Once the order of confiscation is passed, the title of such goods shall stand transferred to the Central Government. In the said order, a suitable time not exceeding three months shall be offered to make the payment of tax, penalty and fine imposed in lieu of confiscation and get the goods released.
		The order in FORM GST MOV-11 shall be uploaded on the common portal and the demand accruing from the order shall be added in the electronic liability register and, upon payment of the demand, such register shall be credited by either debiting the electronic cash ledger or the electronic credit ledger of the concerned person in accordance with the provisions of section 49 of the CGST Act.
2(o)		Once an order of confiscation of goods is passed in FORM GST MOV-11, the order in FORM GST MOV-09 passed earlier with respect to the said goods shall be withdrawn. An order of confiscation of “conveyance” shall be passed in FORM GST MOV-11, after taking into consideration the objections filed by the person in charge of the conveyance and the same shall be served on the person concerned. Once the order of confiscation is passed, the title of such conveyance shall stand transferred to the Central Government. In the order passed above, a suitable time not exceeding three months shall be offered to make the payment of penalty and fines imposed in lieu of confiscation and get the conveyance released. The order in FORM GST MOV-11 shall be uploaded on the common portal and the demand accruing from the order shall be added in the electronic liability register and, upon payment of the demand, such register shall be credited by either debiting the electronic cash ledger or the electronic credit ledger of the concerned person in accordance with the provisions of section 49 of the CGST Act.
2(p)	MOV-11 ( may be common order for the Above (n) and (o) ).	The order referred to in clauses (n) and (o) above may be passed as a common order in the said FORM GST MOV-11.
2(q)		In case neither the owner of the goods nor any person other than the owner of the goods comes forward to make the payment of tax, penalty and fine imposed and get the goods or conveyance released within the time specified in FORM GST MOV-11, the proper officer shall auction the goods and/or conveyance by a public auction and remit the sale proceeds to the account of the Central Government
2(r)		Suitable modifications in the time allowed for the service of notice or order for auction or disposal shall be done in case of perishable and/or hazardous goods.
2(s)		Whenever an order or proceedings under the CGST Act is passed by the proper officer, a corresponding order or proceedings shall be passed by him under the respective State or Union Territory GST Act and if applicable, under the Goods and Services Tax (Compensations to States) Act, 2017. Further, sub-sections (3) and (4) of section 79 of the CGST Act/respective State GST Acts may be referred to in case of recovery of arrears of central tax/State tax/Union territory tax.
2(t)		The procedure narrated above shall be applicable mutatis mutandis for an order or proceeding under the IGST Act, 2017.
2(u)		Demand of any tax, penalty, fine or other charges shall be added in the electronic liability ledger of the person concerned. Where no electronic liability ledger is available in case of an unregistered person, a temporary ID shall be created by the proper officer on the common portal and the liability shall be created therein. He shall also credit the payments made towards such demands of tax, penalty or fine and other charges by debiting the electronic cash ledger of the concerned person.
2(v)	DRC-07 (Summary order :MOV-09/11 shall upload in common portal by DRC 07)	A summary of every order in FORM GST MOV-09 and FORM GST MOV-11 shall be uploaded electronically in FORM GST-DRC-07 on the common portal