HC orders release of Goods & Conveyance to GST dept as Tax & Penalty already been paid

Sreejith K. Vs State Of Gujarat (Gujarat High Court)

It has been brought to the notice of High Court that the requisite amount towards tax and penalty aggregating to 9,55,840/- [Rupees Nine Lac Fifty Five Thousand Eight Hundred Forty Only] has already been deposited by the supplier i.e. M/s. Izaan Trading; the writ-applicant of the Special Civil Application No.3640 of 2022 with the authority. It appears that the supplier has paid tax twice; first in point of time on 19.11.2021 and second in point of time 18.12.2021 alongwith the penalty. If the amount towards the tax and penalty has already been deposited, there should not any problem in ordering release of the goods and the conveyance. Even otherwise the goods are Areca Nuts. The goods could be said to be perishable in nature.

In view of the aforesaid, we direct the respondent no. 3 to release the goods as well as the conveyance at the earliest. If the Department wants to proceed further with the inquiry, it may do so in accordance with law.

FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT

Since the issues raised in both the captioned writ-applications are inter-related, those were taken up for hearing analogously and are being disposed of by this common judgment and order.

2. For the sake of convenience, the Special Civil Application 19116 of 2021 is treated as the lead matter.

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

“7(A) be pleased to admit and allow the present writ petition;

(B) be pleased to issue writ in nature of mandamus and/or any other appropriate writ to quash and set aside the undated order of detention under Section-129(1) of the CGST Act received by the driver of conveyance No.TN 70 Y 8229 stationed at RTO Check Post, Surat (Annexure ‘A’ Colly) issued by the respondent no.2;

(C) during the pendency and until the final disposal of this petition, be pleased to stay the implementation and operation of the undated order of detention under Section-129(1) of the CGST Act at Annexure- ‘A’ Colly. To this petition;

(D) during the pendency and until the final disposal of this petition, be pleased to direct the respondents to release the Goods worth Rs. 63,70,000/- loaded in Conveyance bearing Number TN 70 Y 8229 without payment of tax and penalty; And

(E) be pleased to grant any other and further relief deemed just and proper in the interest of justice.”

4. The writ-applicant is a Proprietor of a Proprietory concern running in the name of ‘M/s. Sridev Traders’ at Rajkot. The Proprietory Concern is engaged in the business of trading of Areca The Firm got registered with the GST on 06.10.2021. The writ-applicant wanted to purchase Areca Nuts. The writ-applicant of the connected writ-application is the supplier. The writ-applicant herein placed an order for purchase of 24500 kg. of Areca Nuts worth Rs. 63,70,000/- [Rupees Sixty Three Lac Seventy Thousand Only] with the supplier.

5. The tax invoice came to be raised by the writ-applicant (supplier) of the connected writ-application namely the ‘M/s. Izaan Trading, Karnataka’. The goods pertaining to the Invoice No.11 were loaded in one particular conveyance. The E-way bill was generated on 08.11.2021 and was valid up to 16.11.2021. The goods of the Invoice No.12 came to be loaded in one another conveyance. Both the conveyance started from Bhadravathi, Karnataka with the consignment to be delivered at Rajkot. It appears that while the goods were in transit, those came to be intercepted at the Navpura-Songadh Highway, Surat on 13.11.2021. On the same day, the statement of the driver came to be recorded and the Form GST-Mov-01 was issued. Later, the respondent no.3 issued the Form GST-Mov-06 pointing out certain deficiencies and alleged illegalities. The matter as on date appears to be still at the stage of Section-129 of the Act.

6. We take notice of the first order that came to be passed by a Co-ordinate bench dated 17.12.2021. The same reads thus:-

“1. Draft Amendment is permitted.

2. The petitioner is the buyer who is before this Court who has not been availed any opportunity before the respondent authority who has initiated the actions with regard to the consignment that was to be received by him.

3. This Court is concerned with the goods carried in Conveyance TN 70 Y 8229. The goods were to be delivered at Rajkot at the place of the petitioner. The FORM GST MOV-06 has been passed, however, according to the petitioner, he came to know about the challenged actions of the respondent through the driver and at no point of time, any notice has been issued upon the petitioner. Further action also after the order of detention under section 129(1) on 13.11.2021 is contemplated.

4. Issue notice returnable on 23.11.2021. Learned AGP Mr. Trupesh Kathiriya waives service of notice on behalf of the respondent No. 1 and ensures to get the details.

5. No further proceedings shall be undertaken in relation to the detention made on 13.11.2021 till the returnable date. Since the petitioner has paid the tax and is desirous of approaching the concerned authority, it is permitted to so do it and the authority concerned shall consider the request of release without creating equity in favour of the party. The pendency of this petition shall not come in the way in considering such request.”

 7. The only relief, which both, the purchaser as well as the supplier are seeking as on date is the release of the goods and the conveyance.

8. We have heard Mr. Mihir Joshi, the learned senior counsel assisted by Ms. Pooja Ashar, the learned counsel appearing for the writ-applicants and Mr. Utkarsh Sharma, the learned AGP appearing for the respondent – State.

9. It has been brought to our notice that the requisite amount towards tax and penalty aggregating to 9,55,840/- [Rupees Nine Lac Fifty Five Thousand Eight Hundred Forty Only] has already been deposited by the supplier i.e.M/s. Izaan Trading; the writ-applicant of the Special Civil Application No.3640 of 2022 with the authority. It appears that the supplier has paid tax twice; first in point of time on 19.11.2021 and second in point of time 18.12.2021 alongwith the penalty. If the amount towards the tax and penalty has already been deposited, there should not any problem in ordering release of the goods and the conveyance. Even otherwise the goods are Areca Nuts. The goods could be said to be perishable in nature.

10. In view of the aforesaid, we direct the respondent no.3 to release the goods as well as the conveyance at the earliest. If the Department wants to proceed further with the inquiry, it may do so in accordance with law.

The goods as well as the conveyance shall be released on or before 28^th February, 2022.

11. With the aforesaid, this writ-application stands disposed of.

12. We are not inclined to quash the detention order as on date. We are saying so because tomorrow the department may deem fit to issue notice under Section-130 of the Act in the Form GST-Mov­ If such notice is issued, it shall be open for the writ-applicant to question the same in accordance with law before the appropriate forum.

Direct service is permitted.

ORDER IN CIVIL APPLICATION:-

In view of the order passed in the main matter, the Civil Application would not survive and the same is disposed of accordingly