2018 Taxo.online 225
WRIT TAX No. – 942 of 2018 dated 10.07.2018
M/s JAI BABA AMARNATH INDUSTRIES
STATE OF U.P. AND 3 OTHERS
Central Goods & Services Tax Act, 2017
Section 107, 109, 110, 111, 112 & 129
Ashok Kumar, Justice
Represented by: –
Petitioner: – Rahul Agarwal
Respondent: – C.S.C.
Heard Sri Rahul Agarwal, learned counsel for the petitioner and Sri B.K. Pandey, learned Standing Counsel representing all the respondents.
Learned Standing Counsel has rightly pointed out that the constitution of the appellate Tribunal is to be done by the GST council. For that purposes the necessary instructions are required from the Union.
In view of the said submission, learned counsel for the petitioner is directed to incorporate Union of India as respondent no. 5 in the memo of appeal during the course of the day.
Sri Rahul Agarwal, learned counsel for the petitioner is directed that a copy of this petition be served upon Senior Standing Counsel for Union of India along with a photostat copy of this order.
The instant writ petition has been filed against the proceedings under Section 129 (3) of the U.P. GST Act, 2017.
The contention of the learned counsel for the petitioner is that the petitioner is a seller, has affected certain sales of M.S. Bar to a registered dealer situated at Jhansi, namely M/s. Jhansi Enterprises, Shivpuri Road, Jhansi against the tax invoice dated 16.05.2018. In the tax invoice the value of the commodity was shown to the tune of Rs. 6,02,352/- and the IGST (Integrated Goods and Service Tax) has been charged @ 18% to the tune of Rs. 1,08,423.36/-. After the issuance of the tax invoice the goods are handed over to the transporter namely Hindustan Transport Company for transportation from Mandi Gobindgarh Sahib, Punjab to Jhansi, U.P.
On 17.05.2018 at 11.50 pm the goods are intercepted by the respondent no. 4 and a detention memo has been issued in which it has been mentioned that the goods though were accompanying the documents but it was not accompanying the E-way bill.
On the basis of the aforesaid discrepancy the seizure proceedings are carried out and a penalty order under Section129 (3) dated 22.05.2018 was passed.
Against the order passed under Section 129 (3) dated 22.05.2018, the petitioner went in appeal under Section 107 (1) of the U.P. GST Act, before the Additional Commissioner, Grade-2 (Appeal), Mathura. The appeal has been dismissed vide impugned order dated 21.06.2018 by which the Appellate Authority has affirmed the order of penalty passed by the respondent no. 4 and directed the petitioner to deposit a sum of Rs. 7,25,700/- which is the disputed amount.
Against this order of First Appellate Authority the present writ petition has been filed.
The contention of the learned counsel for the petitioner is that though Section 109,110,111 and 112 of the Act provides the Constitution of appellate Tribunal and procedure before the appellate Tribunal etc. but till date no appellate Tribunal is constituted by the respondent State.
Learned Standing Counsel has contended that it is only the union to constitute the appellate Tribunal and not alone the State of U.P.
This Court finds that in any case the constitution of the Tribunal is necessary and in this regard earlier also this Court has issued the directions for the constitution of the Tribunal.
Surprisingly even after completion of one year from the date of introduction of the GST no appellate Tribunal has been constituted.
Let the Principal Secretary (Tax and Institutional Registration) Civil Secretariat, Lucknow may file his personal affidavit by providing all details with regard to non establishment of the Tribunal till date and the steps taken by the respondent authorities.
Having heard the learned counsel for the parties and after perusal of the documents, an interim protection is granted to the petitioner by directing for release of the seized goods along with the vehicle on furnishing of bank guarantee to the tune of Rs. 5,00000/-.
Let the goods and vehicle be released forthwith on furnishing of bank guarantee as indicated herein above.
Learned Standing Counsel prays for and is allowed two weeks’ time to file counter affidavit both with respect to the non constitution of the appellate Tribunal and if he so desires to the contents of the revision petition. One week’s time thereafter is allowed to the petitioner for filing the rejoinder affidavit.
List this petition on 2nd August, 2018.