Case Law Details
Larsen And Toubro Limited Vs The Commissioner (Kerala High Court)
The high court was of the view that the controversy involved assailing the impugned notices could not be adjudicated at this stage of the matter, particularly when the petitioner had already submitted a reply backed by relevant provisions and circulars which is required to be considered dispassionately and in a pragmatic manner. Petitioner was directed to submit a bank guarantee in terms of the provisions of section 129 for release of the vehicle. The writ petition was disposed of.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
Petitioner, a Public Limited Company engaged in the execution of work contract with Cochin Shipyard, has approached this Court challenging the proceedings initiated under Section 129(3) of the Central Goods Service Tax Act, 2017 (hereinafter referred to as ‘CGST Act’, for short). Exts.P4, P4(a) and P4(b) notices were issued on the premise that the already purchased cranes working in Orissa were entrusted to the transporter – M/s.Zinka Logistics Solutions Pvt.Ltd for transportation to Kochi and in that respect, three separate delivery chalans were issued vide Exts.P2 and P2(a) and P2(b).
2. Sri.A.Kumar, learned counsel appearing on behalf of the petitioner submits that as per the requirement of law, the petitioner generated e-way bills with the Part A details in accordance with Rule 138 of the Central Goods Service Tax Rules, 2015 (hereinafter referred to as ‘the Rules’, for short). Pursuing the aforementioned provisions of sub rule 1 of Rule 138 of the Rules, it is a mandatory obligation upon a transporter to also fill the information in Part A of the Form GST e-way bill-01(electronically). For the reasons that the transporter did not fill up that form, in other words, did not comply with the requirement of law in discharging the obligation, three trailers/vehicles while in the jurisdiction of Kochi were intercepted and retained by the Kochi Authorities. It is further submitted that the alleged detention could not have been done under the provisions of Section 129 of the Act, in view of Ext.P7 circular dated 22.11.2017 issued by the Ministry of Finance whereby in respect of the other items, including the cranes in the instant case has been referred to be exempted from the applicability of IGST in the absence of any ‘supply’. It is just like that if the owner of a crane is transporting his goods from one State to another State, on account of the availability of the work. He contends that at the best, it could be a case of minor penalty as envisaged under Section 122 of the Act. Though instant case, the violation of Section 129 (3) and (6) for the consequential initiation of confiscation proceedings after expiry of fourteen days have not been assailed, but the fact of the matter is that the goods of such nature would not be eligible for any tax or penalty. In this regard, Exts.P5 and P6 replies in response to the impugned notices have already been filed, but there is no adjudication even by the Commissioner i.e., higher officer, though submitted Ext.P9 representation dated 24.01.2020 also.
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