Case Law Details

Case Name : AVH Corporation Vs State of Gujarat (Gujarat High Court)
Appeal Number : R/Special Civil Application No. 21615 of 2019
Date of Judgement/Order : 06/01/2020
Related Assessment Year :
Courts : All High Courts (5997) Gujarat High Court (598)

AVH Corporation Vs State of Gujarat (Gujarat High Court)

In the given case, petitioner is engaged in the business of trading of building material and other items in wholesale. Petitioner has applied for G.S.T.Number with the G.S.T.Authorities and is granted G.S.T.Number. Petitioner is selling materials across India by procuring materials from wholesale dealers, manufacturers and commission agents as the case may be. Petitioner has got order from a company having its office at Hyderabad being M/s. Dhanush Eximhe said firm wanted vitrified tiles of 600mm x 600mm. On receipt of the order from M/s.Dhanush Exim, petitioner  started procuring  the material. Petitioner got desired material from M/s.Pragati Exports having office at Paddhari. M/s.Pragati Exports had purchased the material from Morbi and therefore the delivery has been given by M/s.Pragati Exports by procuring material from Morbi at Morbi only and loaded in the truck. Thereafter petitioner has generated E-way bill by entering the details in the GST Portal. In the E-way Bill it is stated that the material has been loaded from Morbi and the said truck will deliver the goods at Hyderabad.

When the truck was traveling from Morbi to Hyderabad department has detained the truck for physical verification has stated that prima facie documents tendered are found to be defective.

Therefore, assessee has the view that in the present case nothing has been found in contravention of the provisions of the Act. Everything has been found O.K. and only objection of the officer is that prima facie documents tendered are found to be defective and for that purpose vehicle cannot be detained because everything can be verified online.

HC do not propose to go into the details of the alleged breach. The position, as on today, is that the concerned authority has issued a notice under Section 130 of the Act, calling upon the writ applicant to show cause as to why the goods and the vehicle should not be confiscated and appropriate penalty be imposed.

This Court had an occasion to consider the provisions of Sections 129 and 130 of the Act respectively, in detail, in the case of Synergy Fertichem Pvt. Ltd. V/s. State of Gujarat. HC are of the view that as the notice for confiscation has been issued, it is expected of the writ applicant now to file an appropriate detailed reply to the same, for the purpose of getting such notice discharged.

For this purpose, the writ applicant may rely upon the decision of this Court, rendered in the case of Synergy (Supra). At this point of time, HC would not like to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India. HC direct  the concerned authority to pass appropriate order, so far as the notice of confiscation is concerned, within a period of 15 days from today.

With the above directions, all the three writ applications are disposed of.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

1. Since the issues raised in all the Writ Applications are the same, they were heard analogously and are being disposed of by this common order.

2. For the sake of convenience, the Special Civil Application No.21615 of 2019 is treated as the lead

3. By this Writ Application, under Article 226 of the  Constitution of India, the writ applicant has prayed for the following reliefs:

“(A) To admit and allow this petition.

(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to forthwith release truck No.GJ-36-T-9718 alongwith goods which is lying at Ahmedabad since 5.11.2019.

(C) Pending admission, hearing and final disposal of the above Special Civil application to direct the respondent Nos.1 & 2 to forthwith release truck No. GJ-36-T-9718 alongwith goods which is lying at Ahmedabad since 5.11.2019.

(D) The Hon’ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.

(E) To award the cost of this petition.”

4. The facts giving rise to this Writ Application, as pleaded in the Writ Application itself, are as under:

“4.1. Petitioner is engaged in the business of trading of building material and other items in wholesale. Petitioner has applied for G.S.T.Number with the G.S.T.Authorities and is granted G.S.T.Number being GSTIN No.24ATZPK2764R1ZL. Petitioner is selling materials across India by procuring materials from wholesale     dealers, manufacturers and commission agents as the case may be.

4.2. Petitioner has got order from a company having its office at Hyderabad being M/s. Dhanush Exim having address at 5-13 D, Chandanagar, Serillingampally Ranga Reddy,Hyderabad. The said firm is duly registered with G.S.T. Authorities vide GSTIN No.36BB1PG9640C1ZJ. The said firm wanted vitrified tiles of 600mm x 600mm. On receipt of the order from M/s.Dhanush Exim, petitioner  started procuring  the material.

Petitioner got desired material from M/s.Pragati Exports having office at Paddhari. M/s.Pragati Exports is engaged in the business of procuring wholesale material of vetrified tiles from manufacturers. The petitioner placing order on M/s. Pragati Export,  the supplier M/s.Pragati Exports on 3.11.2019 issued Tax Invoice by procuring material of 600mm x 600mm  vitrified tiles and it was loaded in Truck No.GJ-36-T-9718.

4.3. On receipt of the tax invoice from M/s.Pragati Exports, petitioner raised bill on M/s.Dhanush Exim, Hyderabad and place of dispatch shown therein is Jetpar Road, Morbi. M/s.Pragati Exports had purchased the material from Morbi and therefore the delivery has been given by M/s.Pragati Exports by procuring material from Morbi at Morbi only and loaded in the truck. Thereafter petitioner has generated E-way bill by entering the details in the GST Portal. In the E-way Bill it is stated that the material has been loaded from Morbi on 04.11.2019 in Truck No.GJ-36-T-9718 on 04.11.2018 and the said truck will deliver the goods at Hyderabad. It is submitted that the transporter’s name shown in the said e-Way Bill is M/s. Tilak Roadlines. M/s. Tilak Roadlines is also having GST No.24AHCPT4843P1ZS. That the material has been loaded in the truck and it also indicates the value of tax in the said e-Way Bill.

4.4. When the truck was traveling from Morbi to Hyderabad, on reaching Songadh Checkpost, the respondent no.2 herein has detained the truck and given Form GST MOV-01 to the driver of the truck on 5.11.2019 at 5.18 p.m. Thereafter respondent No.2 issued MOV-2 on 05.11.2019 for physical verification has stated that prima facie documents tendered are found to be defective and genuineness of the goods in transit tendered documents require further verification. It is submitted that physical verification is done by respondent No.2 and everything has been found O.K.

4.5. Thereafter, the respondent No.2 issued FORM GST MOV-06 on 08.11.2019 at 4.45p.m. And notice under Sec.129 of the Act that prima facie documents tendered are found to be defective.

4.6. In the present case nothing has been found in contravention of the provisions of the Act. Everything has been found O.K. and only objection of the officer is that prima facie documents tendered are found to be defective and for that purpose vehicle cannot be detained because everything can be verified online. Therefore officer has acted against the provisions of law. Form GST MOV­10 has been issued by the respondent No.2 on 20.11.2019 and it has been given to the driver of the truck who is in charge of the conveyance. It is submitted that in the present case notice under Sec.129(3) has not been issued. It is submitted that as per Govt. of India circular it is the duty of the respondent No.2 to call upon the owner whether the owner is ready to make payment of tax and penalty and if the owner did not remain present, then and then only the proper officer can proceed further.

4.7. Hence the present petition before this Hon’ble Court on the grounds urged in the Memo of Petition.”

5. Thus, it appears from the materials on record that the goods as well as the vehicle came to be seized by the G.S.T. Authorities on 05.11.2019. According to the Authorities, the writ applicant has committed breach of the provisions of the Gujarat Goods and Services Tax Act, 2017.

6. We do not propose to go into the details of the alleged breach. The position, as on today, is that the concerned authority has issued a notice under Section 130 of the Act, calling upon the writ applicant to show cause as to why the goods and the vehicle should not be confiscated and appropriate penalty be imposed.

7. This Court had an occasion to consider the provisions of Sections 129 and 130 of the Act respectively, in detail, in the case of Synergy Fertichem Pvt. Ltd. V/s. State of Gujarat and allied matters vide judgment dated 23rd December, 2019. We are of the view that as the notice for confiscation has been issued, it is expected of the writ applicant now to file an appropriate detailed reply to the same, for the purpose of getting such notice discharged.

8. For this purpose, the writ applicant may rely upon the decision of this Court, rendered in the case of Synergy (Supra). At this point of time, we would not like to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India. We direct  the concerned authority to pass appropriate order, so far as the notice of confiscation is concerned, within a period of 15 days from today.

9. It would be open for the writ applicant to file its reply, if any, at the earliest. Thereafter, the concerned authority shall look into the same and take an appropriate decision, keeping in mind the principles as explained by this Court in the case of Synergy (Supra) . In any view of the matter, as the goods and the vehicle have been detained since 5th November, 2019, we direct the concerned authority to pass appropriate order, after taking into consideration the stance of the writ applicant, if any, on or before 21st January, 2020.

10. With the above directions, all the three writ applications are disposed of. We clarify once again that we have not gone into the merits of the matters. It is needless to clarity that if reply is not filed, then the authority need not wait for the filing of such reply. Notice in all the three writ applications stand discharged. Direct service is permitted.

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