Goods/Vehicle cannot be Detained without Opportunity of Defending to Person Transporting

AMI Enterprises Pvt. Ltd. Vs Union of India (Jharkhand High Court)

A bare perusal of the provisions of Section 129 shows that no goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods on the allegation of making transit in contravention of the provisions of the Act or Rule made thereunder. Sub-section (3) indicates that 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). Sub-section (6) provides that where the person transporting any goods or the owner of such goods fails to pay the amount of penalty under sub-section (1) within fifteen days from the date of receipt of the copy of the order passed under sub-section (3), the goods or conveyance so detained or seized shall be liable to be sold or disposed of otherwise, in such manner and within such time as may be prescribed, to recover the penalty. Apparently, the proceedings have been initiated on the same date and concluded also on the same date. Though, learned counsel for the respondent has stated that the proceedings were expedited at the instance of the tax payer on the same date, but there is nothing to substantiate such contention. The impugned adjudication order and the appellate order therefore both suffer from procedural infirmities and lack of proper opportunity to the petitioner or the person transporting to defend himself. As such, the impugned order dated 20^th September, 2021 (Annexure-6) issued in Form GST MOV-09 and the appellate order dated 17^th February, 2022 (Annexure-9) are set aside.

FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT

Heard learned counsel for the parties.

2. On the alleged violation of Section 129 of Central Goods and Services Tax Act, 2017 read with Rule 68 thereof as E-Way bill had expired at 11.59 p.m. on 17^th September, 2021, the vehicle bearing no. JH05 AF 0361 was intercepted at 08:20 a.m. on 18^th September, 2021. However, the entire proceedings starting from detention of the vehicle by issuance of Form GST MOV-06, show-cause notice in GST Form MOV-07 and the adjudication order in Form GST MOV-09 were passed on the same date i.e., 20^th September, 2021. Petitioner went in appeal but lost there also vide order dated 17^th February, 2022 (Annexure-9) passed by respondent no. 2. Petitioner had deposited the entire tax amount with interest and got the vehicle released on 21^st September, 2021. Being aggrieved, writ petitioner has approached this Court.

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