1. AVH Corporation v. State of Gujarat [2020] 114 taxmann.com 709 (Gujarat)
Petitioner to file detailed reply in response to the Notice Issued under Section 130 and concerned authority to pas appropriate order expeditiously
Facts: Goods as well as vehicle came to be seized by G.S.T. Authorities on 05.11.2019 on the ground that applicant has committed breach of the provisions of the Gujarat Goods and Services Tax Act, 2017.
Held: Hon’ble Court did not go into details of alleged breach. The concerned authority had issued notice under section 130 of CGST Act, calling upon writ applicant to show cause as to why goods and vehicle should not be confiscated and appropriate penalty be imposed. The court was of the view that as notice for confiscation has been issued, it is expected of writ applicant now to file an appropriate detailed reply to the same, for the purpose of getting such notice discharged. For this purpose, writ applicant may rely upon decision rendered in the case of Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 112 taxmann.com 370. The court did not exercise extraordinary jurisdiction under Article 226 of the Constitution of India. The concerned authority was directed to pass appropriate order, so far as the notice of confiscation is concerned, within a period of 15 days. The writ applicant is open to file its reply, if any, at the earliest and thereafter, concerned authority should look into the same and take an appropriate decision, keeping in mind the principles as explained by this Court in the case of Synergy (Supra).
2. Meghmani Organics Ltd. v. State of Gujarat [2020] 116 taxmann.com 25 (Gujarat)
Good being transported from one branch to another in the course of Intra State Branch Transfer detained as Part B of Eway Bill was not filled and Order Passed before the appointed date of hearing by the officer
Facts: On 23.06.2019, a consignment of CPC Blue valued at Rs. 25,70,000/- was being transported from factory of applicant situated at Panoli to one another factory of writ applicant located at Vatva, Ahmedabad i.e. Intra State Branch Transfer. While goods were in transit, mobile squad of respondent detained conveyance along with goods on 23.06.2019 and detention order was issued in form GST MOV-06 dated 23.06.2019 on the ground that Part-B of the e-way bill was not generated. Writ applicant immediately deposited an amount of Rs. 9,25,200/- with the respondent no.2 herein. On deposit of such amount, the goods and the conveyance were released.
On 23.06.2019 itself, a notice under Section 129(3) in Form GST MOV-07 was served upon the writ-applicant calling upon the writ-applicant to show-cause as to why the applicable tax and also penalty equal to 100% of the tax payable should not be recovered. The writ-applicant was directed to appear before the 2nd respondent on 08.07.2019 at 11.00 am. The writ applicant filed a detailed reply in writing dated 05.07.2019. The reply in writing dated 05.07.2019 came to be tendered before 2nd respondent on the date of hearing i.e. 08.07.2019. 2nd respondent proceeded to pass an order dated 02.07.2019 confirming imposition of tax and penalty without giving any opportunity of personal hearing, which was scheduled on 08.07.2019.
Contention of Petitioner- Being an intra state branch transfer (in the nature of transfer of goods from one Unit of a registered person to another), there was no obligation on the writ applicant to discharge any GST liability.
Held: Hon’ble Court held that this is a case of gross violation of the principles of natural justice. When the writ-applicant was asked to remain present on 08.07.2019 for the purpose of personal hearing, adjudication could not have been concluded and an order could not have been passed on 02.07.2019 i.e. before the scheduled date of hearing. This is suggestive of the fact that the reply of the writ-applicant in writing dated 08.07.2019 was also not taken into consideration.
It was contended on behalf of the respondents that the entire amount came to be deposited on the very first day i.e. the day and date of seizure then there was no question, thereafter, to give any opportunity of hearing to the writ-applicant.
The court did not accept the explanation. Hon’ble Court observed that the date on which goods and conveyance was seized, respondent no.2 asked writ-applicant to deposit a particular amount towards tax and penalty so that the goods and conveyance can be released. As writ-applicant wanted goods and conveyance to be released, he deposited the requisite amount. Later on, a show-cause notice came to be issued in the Form GST MOV-07 dated 23.06.2019. It was in the form of Notice under Section 129(3) of the Act, 2017. In the said show-cause notice, the applicable penalty along with the applicable tax has been stated and the writ-applicant was called upon to show cause as to why the said amount should not be recovered from him, failing which, the goods and the coveyance would be liable to be confiscated. The writ-applicant filed his detailed reply dated 05.07.2019 pointing out many relevant aspects of the matter including the fact that the seizure and detention itself was not justified. The writ-applicant was not given any opportunity of hearing before concluding proceedings for the purpose of Section 129(3) of the Act. To put it in another words, the case on hand is one of violation of sub-clause 4 of Section 129 of the Act, 2017. It provides that no tax, interest or penalty shall be determined under sub-section 3 without giving a person concerned an opportunity of being heard. The opportunity which the statute is talking about has to be meaningful opportunity and not just an eye wash.
The Hon’ble Court quashed and set aside impugned order dated 02.07.2019 determining tax and penalty and remitted matter to the respondent no.2 for fresh consideration of the entire issue after giving appropriate opportunity of hearing to the writ-applicant.
3. Bombay Veraval Transport Company v. State of Gujarat [2020] 114 taxmann.com 468 (Gujarat)
Notice Issued by Officer under Section 129, No reply filed by the applicant thus petition disposed with a direction to the petitioner to file the reply and concerned officer to pass an appropriate order
Held: Notice had been issued under section 129 of the Central Goods & Services Tax Act, 2017 and petitioner hadn’t filed any reply and therefore, no order was passed by the Authority, under section 129(3) of the Act.
In view of the aforesaid fact situation, Hon’ble Court disposed off the petition with the direction that as and when petitioner files reply to the notice, under section 129(3) of the Act, the respondent-Authority may consider the same, after giving an opportunity of hearing to the petitioner, in consonance with sub-section 4 of section 129 of the Act and pass an appropriate order, under the provisions of the Act. The petition was accordingly disposed of. Notice is discharged.
4. AV Traders v. State of Gujarat [2020] 116 taxmann.com 17 (Gujarat)
Order passed under Section 130 to be recalled and fresh order to be passed by the concerned officer in view of pronouncement in the case of Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 112 taxmann.com 370
Held: In view of pronouncement in the case of Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 112 taxmann.com 370, it was suggested to the learned AGP to recall impugned order passed in MOV-11 and decide matter afresh keeping in mind principles of law as explained by in the above referred decision. AGP stated after obtaining necessary instructions from the officer concerned that the impugned order passed under Section 130 of the Act dated 31st July, 2019 shall be recalled and fresh proceedings shall be initiated in accordance with law and a fresh order shall be passed after giving an opportunity of hearing to the writ applicants, keeping in mind the principles as explained by this Court in the above referred decision. Keeping in view of statement being made by learned AGP, Hon’ble Court did not adjudicate application on merits
However, it was observed by the Hon’ble Court that the goods and conveyance came to be detained and seized way back on 19th July, 2019 and were in possession of GST Authorities. Since, authorities were directed to initiate fresh proceedings with regard to confiscation, therefore writ applicants were directed to deposit an amount of Rs.4,02,500/- towards tax and penalty as determined under section 129 of the Act. On deposit of such amount, goods and conveyance shall be released forthwith subject to the final outcome of the confiscation proceedings.
5. Aashiward Marketing v. State of Gujarat [2020] 114 taxmann.com 326 (Gujarat)
Petitioner to file an appeal before appellate authority under section 107 of CGST Act, 2017
Held: Hon’bleCourt observed that question which fell for theirconsideration was, whether writ-application should be entertained or writ-applicant should be relegated to avail alternative remedy of preferring a statutory appeal before appellate authority under section 107 of the Act.
It was concluded that writ-applicant should prefer an appeal under section 107 of the Act before concerned appellate authority and no opinion was expressed on the merits of any of the submissions. The appellate authority was asked to keep in mind two judgments i.e. Insha Trading Co. v. State of Gujarat [2019] 112 taxmann.com 175 (Guj.) and Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 112 taxmann.com 370 (Guj.) and Circular No.41/15/2018-GST issued by the Government of India, Ministry of Finance, dated 13.04.2018. Upon registration of the appeal, the same should be heard and disposed of with an appropriate order within a period of 15 days from the date of conclusion of the hearing.
6. Rajkumar Maheshwari V. Union of India [2020] 114 taxmann.com 400 (Gujarat)
Petitioner to deposit the sum of Rs 7,50,000/- and concerned officer asked to release the vehicle and at liberty to continue proceedings for confiscation under section 130 of CGST Act, 2017 keeping in mind decision in the case of Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 103 taxmann.com 426/72 GST 641.
Held: Counsel for the petitioner made a statement that petitioner was ready and willing to deposit a sum of Rs. 7,50,000/-(Rupees Seven Lakh Fifty Thousand only) so as to get the release of the vehicle of the petitioner without prejudice to the rights and contentions of the petitioner to be raised before the authority for adjudication of the notice under section 130 of the Act, 2017. Assistant Government Pleader under instructions, made a statement that if petitioner deposited a sum of Rs. 7,50,000/- towards tax, interest and penalty within two weeks from today, then the vehicle of the petitioner would be released. In view of the statements made by the learned counsel for the parties, Hon’ble directed the petitioner to deposit a sum of Rs. 7,50,000/-before the respondent No.3 within a period of two weeks. Upon such deposit, vehicle of petitioner bearing number MP-07-GA-8154 should be released. The respondents – authorities were at liberty to continue the proceedings for confiscation under section 130 of the Act, 2017 keeping in mind the decision of this Court in the case of Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 103 taxmann.com 426/72 GST 641.
