The petitioners are dealers, inter alia, in brass and copper scraps, having their business concern in Coimbatore, Tamil Nadu and Jamnagar, Gujarat, respectively. A consignment of scrap that was being transported from Coimbatore to Gujarat from the 1st petitioner, as consigner, to the 2nd petitioner, as consignee, was detained by the respondents at Kodumuda in Palakkad. The detention notice issued to the petitioners indicates that the reason for detention was that the documents that accompanied the transportation of the goods were found to be defective. The consignment in question was accompanied by a tax invoice and an e-way bill that showed payment of IGST as also that the transportation of the goods was from Coimbatore to Gujarat. The respondents, however, obtained evidence that suggested that the loading of the consignment was effected in Palakkad, within the State of Kerala, and not in Coimbatore. While the detention of the goods may have been justified on the said ground, and based on the material available with the respondents to suggest that the transportation shown in the e-way bill was not the actual transportation of the goods in question, the respondents went further, and invoked the provisions of Section 130 of the GST Act, to serve a notice in FORM GST MOV-10 on the petitioners. While the petitioners submitted their replies to the said notice, and thereafter appeared before the respondents for a hearing in connection with the said notice, their contentions were rejected, and an order of confiscation was passed under Section 130 of the CGST Act, confiscating the goods and the vehicle. In the writ petition, the petitioners impugn the confiscation order passed against them by the respondents.
2. The learned Government Pleader would rely on the documents produced by her along with memos to show that there was ample material available with the Department to proceed against the petitioners in terms of Section 130 of the GST Act.
3. I have heard Dr.Sri.K.P.Pradeep, the learned counsel appearing for the petitioners and also Dr.Smt.Thushara James, the learned Government Pleader appearing for the official respondents of the State.
4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that while the respondents were justified in detaining the goods and the vehicle, based on the material that was available with them which clearly showed that the transportation undertaken by the petitioners, of the goods in question, was not necessarily from Coimbatore as was declared in the invoice and the e-way bill that were produced by the petitioners, the said material does not point to any intention to evade tax, more so when, there is nothing to doubt the genuineness of the declaration of the petitioners that the goods were consigned to Gujarat from Coimbatore, or any material to suggest that the ultimate destination of the goods was any place other than Gujarat. It has to be noticed that the 1st petitioner had admitted his liability to IGST by declaring the same in the invoice, and if the goods, even assuming that they were loaded from Palakkad, were destined to Gujarat, it is the IGST that had to be paid by the 1st petitioner/consigner of the goods. To that extent, therefore, it cannot be said that there was any intention to evade payment of tax because the tax liability, in either event, would be the same. That apart, there is no specific averment in the notice served on the petitioners, as regards any act or omission, that was suggestive of an intention to evade payment of tax. I therefore find that the proceedings initiated against the petitioners under Section 130 of the GST Act, cannot be legally sustained. The impugned order under Section 130 of the GST Act is therefore quashed, and the respondents are directed to pass orders under Section 129(3) of the GST Act, after hearing the petitioners, within a week from the date of receipt of a copy of this judgment.
In the meanwhile, however, the respondents shall permit the petitioners to clear the goods and the vehicle on furnishing a bank guarantee for the tax and penalty amounts determined, consequent to the detention of the goods and the vehicle. I make it clear, however, that after the release of the goods and the vehicle, as above, and after passing the final order under Section 129(3), if the said order is adverse to the petitioners, the respondents shall refrain from invoking the bank guarantee furnished by the petitioners for a period of three weeks from the date of communication of the order under Section 129(3) to the petitioners, so as to enable the petitioners to invoke their appellate remedy, if they so desire.
The writ petition is disposed as above. The Government Pleader shall communicate the gist of this judgment to the respondents so as to enable the petitioners to effect an expeditious clearance of the goods and the vehicle, on their furnishing a bank guarantee for the amount of tax and penalty determined by the respondents.