Case Law Details
Juhi Alloys Private Limited Vs State of Up And 3 Others (Allahabad High Court)
The Allahabad High Court allowed the writ petition filed by Allahabad High Court against orders imposing tax, penalty, and fine under Sections 130 and 122 of the GST Act. The dispute arose after a search conducted on 13/14.03.2018 at the petitioner’s factory, where discrepancies relating to raw materials and semi-finished and finished goods were allegedly found. A confiscation order dated 22.11.2018 had earlier been quashed by the High Court in a previous round of litigation without remanding the matter back to the authority. Despite this, a fresh show cause notice was issued on 18.10.2019, followed by an order dated 23.11.2019 imposing tax, penalty, and fine on 16 items allegedly found in excess stock. The appellate authority partly reduced the liability through order dated 16.04.2024. The petitioner argued that proceedings under Section 130 could not be initiated merely on stock discrepancies found during a survey against a registered dealer and that proceedings, if any, should have been initiated under Sections 73 or 74 of the GST Act. The Court noted that the issue was already settled through earlier decisions, including S/s J.H.V. Steels Limited, S/s Dinesh Kumar Pradeep Kumar, and M/s PP Polyplast Private Limited, which held that stock discrepancies during surveys must be dealt with under Sections 73/74 and not under Section 130. Since the State could not show any contrary authority, the Court held that the impugned orders dated 16.04.2024 and 23.11.2019 were unsustainable in law and quashed them.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
Heard Shri Vinod Kumar Upadhya, learned Senior Advocate, assisted by Shri Ritvik Upadhya, learned counsel for the petitioner and learned ACSC for the State – respondents.
The instant writ petition has been filed against the impugned order dated 16.04.2024 passed by the respondent no. 3 in so far as it relates to the remaining goods of the petitioner and also the imposition and affirmation of the tax, penalty and fine in respect of the said goods.
Learned senior counsel for the petitioner submits that this is the second round of litigation. He further submits that on 13/14.03.2018, a search party conducted search of the premises of the petitioner and the factory, in which a computerized weigh bridge is installed and thereafter, a seizure order was passed. Aggrieved by the search and seizure order, the petitioner filed Writ Tax No. 618 of 2018 before this Court. During the pendency of the writ petition, a confiscation order dated 22.11.2018 was passed by the authority under section 130 of the GST Act, which was challenged. The aforesaid writ petitions were decided by a Division Bench of this Court by a common judgement & order dated 15.03.2019. He further submits that in Writ Tax No. 618/2018, the confiscation order dated 22.11.2018 was quashed. He further submits that in Writ Tax No. 619 of 2018 (Rimjhim Ispat Limited Vs. State of U.P. & Others), this Court has remanded the matter back to the concerned authority to adjudicate on the question of confiscation afresh, but in the case of the petitioner’s Writ Tax No. 618/2018 (Juhi Alloys Private Limited Vs. State of U.P. & Others), no such order of remand was passed by this Court after quashing the confiscation order dated 22.11.2018.
He further submits that thereafter, a fresh show cause notice was issued to the petitioner on 18.10.2019 under section 130 of the GST Act, read with section 122 of the GST Act to show cause with regard to stock of materials alleged to have been found in excess during the search dated 13.03.2018. To the show cause notice, the petitioner submitted reply on 15.11.2019 annexing all the copies of the relevant documents before the respondent no. 4, but vide order dated 23.11.2019, the respondent no. 4 imposed tax, penalty and fine on all the 16 items allegedly found in excess of the stock mentioned in the books of the petitioner. Aggrieved by the said order dated 23.11.2019, the petitioner preferred statutory appeal before the respondent no. 3, which has been decided vide impugned order dated 16.04.2024, by which the tax, penalty and fine imposed vide order dated 23.11.2019 was eliminated and the total disputed liability of tax, penalty and fine was reduced.
Learned senior counsel for the petitioner further submits that the proceedings under section 130, read with section 122 of the GST Act cannot be initiated in case any alleged discrepancy has been found at the time of survey against a registered dealer. The proceedings ought to have been initiated under sections 73/74 of the GST Act. He further submits that the impugned order dated 16.04.2024 is illegal since by the judghement & order dated 15.03.2019 passed by the Division Bench of this Court, the earlier confiscation order dated 22.11.2018 was quashed and the case was not remanded back to the respondent no. 4 and thus, the respondent no. 4 did not have any jurisdiction to reopen the case of the petitioner or to decide the confiscation of the seized goods under section 130 of the GST Act. In support of his submissions, he has placed reliance on the judgements of this Court in S/s J.H.V. Steels Limited Vs. Union of India & Others [2024 (12) ADJ 99], S/s Dinesh Kumar Pradeep Kumar Vs. Additional Commissioner, Grade – 2 & Another [Writ Tax No. 1082 of 2022, decided on 25.07.2024] and M/s PP Polyplast Private Limited Vs. Additional Commissioner, Grade – 2 & Another [Writ Tax No. 1183/2024, decided on 30.07.2024].
Per contra, learned ACSC supports the impugned orders and submits that the proceedings have rightly been initiated against the petitioner.
After hearing learned counsel for the parties, the Court has perused the record.
It is admitted that the survey was conducted at the factory premises of the petitioner on 13/14.03.2018, in which certain discrepancy with regard to raw material, semi/finished product, etc. was found, to which confiscation/proceedings under section 130 read with section 122 of the GST Act were initiated against the petitioner.
The issue in hand is no more res integra. This Court in various cases has held that at the time of survey, if some discrepancy in stock is found against the registered dealer, then the proceedings under sections 73/74 of the GST Act ought to have been initiated, instead of section 130 of the GST Act. Reference may be had to S/s Dinesh Kumar Pradeep Kumar (supra), S/s J.H.V. Steels Limited (supra) and M/s PP Polyplast Private Limited (supra).
Learned ACSC could not show any authority deviating the law laid down by this Court as above.
In view of the aforesaid facts & circumstances of the case, the impugned order dated 16.04.2024 passed by the respondent no. 3 as well as the order dated 23.11.2019 passed by the respondent no. 4 cannot be sustained in the eyes of law. The same are hereby quashed.
The writ petition succeeds and is allowed.
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