2018 Taxo.online 505
WRIT TAX NO. – 1518 of 2018 DATED 30.11.2018
M/s M. V. TRADERS
STATE OF U. P. AND 2 OTHERS
2018
GST
Central Goods & Services Tax Act, 2017
67(2), 129 and 130
Hon’ble Mr. Shashi Kant Gupta, Justice and Hon’ble Mrs. Manju Rani Chauhan, Justice
In favour of assessee
High Court
Allahabad
Represented by: –
Petitioner: – Aditya Pandey
Respondent: – C.S.C
Order: –
Heard Sri Aditya Pandey, learned counsel for the petitioner and Sri C.B.Tripathi, learned Standing Counsel.
Learned counsel for the petitioner has submitted that the petitioner is a proprietorship firm was registered under the U.P. Value Added Tax Act and now registered under the Goods and Services Tax Act (hereinafter referred as GST Act) and is filing returns timely and depositing the tax as per the law. He has further submitted that on 03.05.2018, a search was conducted by the respondents at place in question, thereafter, two separate Panchnamas and seizure orders were prepared. Against the said proceedings, the petitioner filed a Writ Tax No. 808 of 2018 before this Court and the Court has passed the order dated 23.05.2018 directing the respondents to file the counter- affidavit and release the goods, which were seized in the proceedings under Section 67(2) of the UPGST Act. He has further submitted that the aforesaid matter is still pending and is sub-judicate before this Court but the respondent no.3 has illegally proceeded against the petitioner by issuing the notice as well as by passing the impugned order. He has further submitted that under Section 67 (2) of the UPGST Act provides for confiscation of goods or documents or books or things, therefore, at the time of initiation of the proceedings under Section 67 of the Act, the respondent no.3 had already seized the goods which has been released subsequently by the direction of this Court and the entire proceedings initiated by the respondent no.3 is under challenge before this Court, therefore the proceedings again initiated by the respondent no.3 for confiscation of the goods, which is no longer with the petitioner, since the same has been sold by the petitioner, is totally illegal and is not sustainable in the eyes of law. He has further submitted that the notice dated 01.09.2018 as well as the consequential order dated 10.10.2018 passed by the respondent no.3 is wholly illegal and is without jurisdiction. He has further submitted that as per Section 129 of the UPGST Act, conditions are prescribed for the release of goods or conveyances and as per sub-Section 6 of Section 129 of the UPGST Act, it has been provided that where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section 1 of Section 129 within 7 days of such detention or seizure further proceedings shall be initiated in accordance with provisions of Section 130. He has further submitted that from the perusal of the aforesaid Section 129(6), it is clear that the proceedings under Section 130 can be initiated only when the person transporting the goods or the owner of the goods transporting the goods fails to pay the amount of tax and penalty for the release of the goods as per section 129(1) of UPGST Act. He has further submitted that Section 129 and Section 130 of the UPGST Act can be invoked only in those cases where the goods are in transportation for supply of goods or for receiving of goods and the above sections are not applicable on the goods found at the registered taxable persons’ declared registered office or godown, therefore, the impugned notice and the consequential order is totally illegal and without jurisdiction.
The matter requires consideration.
As prayed by the learned counsel for the respondent no.3, three weeks’ time is granted for filing counter affidavit in the matter. Two weeks’ time thereafter is granted for filing rejoinder affidavit.
List thereafter.
Till the next date of listing, the effect and operation of the notice issued dated 01.09.2018 and impugned order dated 10.10.2018 passed by the Respondent No. 3, Deputy Commissioner State (SIB) Range C, Commercial Tax Kanpur shall remain stayed.
