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#GSTCase-177-Round up of Judgements on Eway Bill-Part II-January 2020

1. Arya Traders v. State of Gujarat [2020] 114 500 (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] 112 370

Held: In view of pronouncement in the case of Synergy Fertichem (P.) Ltd. v. State of Gujarat [2019] 112 370, 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 19th 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 Hon’ble Court that goods and conveyance came to be detained and seized way back on 9th 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. 4,15,800/- 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.

2. AK Overseas v. State of U.P [2020] 114 374 (Allahabad)

Release of Goods on satisfying the conditions as prescribed under Rule 140 of CGST Rules, 2017

Held: Rule 140 of CGST Rules is being reproduced hereinbelow-

“140. Bond and security for release of seized goods–(1) The seized goods may be released on a provisional basis upon execution of a bond for the value of the goods in FORM GST INS-04 and furnishing of a security in the form of a bank guarantee equivalent of applicable tax, interest and penalty payable.

Explanation- For the purpose of the rules under the provisions of this Chapter, the “applicable tax” shall include central tax and State tax or central tax and the Union territory tax, as the case may be and the cess, if any, payable under the Goods and Service Tax (Compensation to States) Act, 2017 (15 of 2017).”

Hon’ble High Court held that in case petitioner files an application before respondent no. 3 within three weeks from today indicating therein that he is ready to comply with the Requirement of Rule 140, the respondent no. 3 shall pass appropriate orders thereon within a further period of one week. In case the petitioner fulfils the requirement of Rule 140 together with its explanation, he shall release his vehicle along with the goods.

3. ABB India Ltd. v. Union of India [2020] 114 157 (Gujarat)

Goods ordered to be released on deposit of tax amount with the respondent and penalty amount in form of bank guarantee

Facts: There were in all four vehicles involved in the matter. The goods were in nature of electrical goods and a notice under section-129(3) of the Act i.e. GST-MOV-07 came to be issued calling upon writ-applicant to appear before authority concerned on 31st December 2019 and order was received in GST-MOV-09 on January 9, 2020. The total liability towards the tax and penalty plus interest as fixed comes to around Rs.1,00,81,944/-.

Held: Hon’ble Court held that writ-applicant made out a strong prima-facie case to have some interim order in its favour. There were many larger issues, which were raised for the purpose of adjudication of this Court. However, on the present date of hearing, court was concerned with issue whether they should order release of goods and conveyance detained and seized by GST authority.

However, court was inclined to pass an interim order for release of the goods and vehicles. It was directed that writ-applicant to deposit an amount of Rs.50,40,972/- towards the tax with the respondent no.2 and the balance amount of Rs.50,40,972/- towards the penalty shall be in the form of a bank guarantee of any nationalized bank. On deposit of requisite amount and bank guarantee, authority concerned shall release goods and vehicles forthwith.

4. Brij Gopal Gupta v. Government of NCT of Delhi [2020] 114 405 (Delhi)

Release of goods and conveyance on the condition of providing bank guarantee towards penalty amount and since petitioner is a transporter and contends that due tax in respect of goods has already been paid by suppliers in monthly returns, therefore either petitioner would provide proof of such tax payment or provide bank guarantee equivalent to tax amount

Facts: Petitioner preferred writ petition to assail order dated 02.12.2019 passed by Appellate Authority, Delhi, GST as well as order of demand of tax and penalty, passed by Proper Officer, State GST, Ward 74 with a prayer for release of conveyance bearing registration No. HR-38-W-5315 and goods contained therein, that were detained by the respondent on 05.08.2019. Writ was preferred since appellate tribunal of GST is presently non-functional on account of the stay granted by this Court vide order dated 19-11-2019 in Bharatiya Vitta Salahkar Samiti v. UOI bearing number W.P.(C) 6900 of 2018,.

Held: Appellant drewattention to section 129(1)(c) of the CGST Act, which permits release of seized goods and conveyance upon furnishing a security equivalent to the amount payable towards tax and penalty. Hon’ble Court therefore directed respondents to release vehicle aforesaid alongwith goods, upon petitioner furnishing a bank guarantee for penalty amount under the CGST Act , DGST Act and Cess, totalling to Rs. 7,30,782/-

Counsel for the petitioner contended that tax in respect of goods carried in aforesaid conveyance already stands paid by respective suppliers and petitioner was only transporting goods. Hon’ble Court ordered that petitioner shall also provide requisite proof in form of monthly returns to establish that tax on goods in question, being transported, stands paid. In case, tax in respect of said goods has not been paid, petitioner shall provide bank guarantee in respect of amount of tax as well. Bank guarantee shall be provided within two weeks for today to respondents, where after, vehicle and goods shall be released without any further delay.