2018 Taxo.online 256

W.P. No.13001(W) of 2018 dated 26.07.2018

GATI-KINTETSU EXPRESS PRIVATE LIMITED.

ASSISTANT COMMISSIONER OF STATE TAX

2018

GST

Central Goods and Service Tax Act, 2017

Section 130

Debangsu Basak, Justice

Interim

High Court

Calcutta

Represented by: – 

Petitioner: – Mr. Anil Dugar, Mr. Rajarshi Chatterjee 

Respondent: – Mr. Uday Sankar Bhattacharya 

Order: – 

An order passed by the appellate authority confirming an order in original is under challenge in the present writ petition.  

Learned Advocate appearing for the petitioner submits that, the goods should be allowed to be released pending the present writ petition.  

The respondents are represented.  

Learned Advocates appearing for the respondents submit that, there is an order of confiscation as also an order imposing penalty. The petitioner should be put on terms while consideration of release of the goods. Moreover, the writ petition is not maintainable.  

Learned Advocate appearing for the petitioner submits that, the third proviso of Section 130(2) of the Central Goods and Services Tax Act, 2017 provides that, the owner of the conveyance used for the purpose of carriage of the goods will have an option to pay, in lieu of confiscation of the conveyance, a fine equal to the tax payable on the goods being transported thereon.  

Section 130(2) of the Central Goods and Services Tax Act, 2017 is as follows:-  

“Whenever confiscation of any goods or conveyance is authorised by this Act, the officer adjudging it shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the said officer thinks fit:  

Provided that such fine leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon:  

Provided further that the aggregate of such fine and penalty leviable shall not be less than the amount of penalty leviable under sub-section (1) of section 129:  

Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon.”  

The impugned order directs confiscation of the conveyance apart from the goods. It also imposes penalty. The petitioner does not claim itself to be the owner of the conveyance. It seeks release of the conveyance.  

In such circumstances, Section 130(2) of the Act of 2017 is not attracted as the petitioner before me is not the owner of the conveyance.  

In such circumstances, no interim relief can be granted for the petitioner.  

The writ petition should be heard on affidavits.  

Let affidavit-in-opposition be filed within four weeks from date. Reply thereto, if any, be filed within two weeks thereafter.  

List the writ petition under the heading “Hearing” in the Monthly Combined List of September, 2018.  

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.