2020 (2) TMI 492 - HC - GST

Court emphasizes proper procedures under CGST Act, directs prompt appeal filing against confiscation order.

The court found in favor of the petitioner, emphasizing the importance of following proper procedures under Sections 129 and 130 of the CGST Act. The ... Levy of penalty and redemption fine in lieu of confiscation of goods - section 130 of CGST Act - service of SCN - goods along with truck were already released as per interim-relief- HELD THAT:- Persuing the present writ application, a final order, in the Form GST MOV-11, came to be passed. However, according to the writ applicant, at no point of time such order was served upon him. As on date also, the writ-applicant has not been able to go through the contents of such order, as he has not received the same. However, such order passed in the Form GST MOV-11, is available now on record at page No.45 of the petition - Since the final order has been passed in the Form GST MOV-11, we relegate the writ applicant to avail the remedy of preferring an appeal under Section 107 of the Act before the appellate authority. Application disposed off. Issues Involved:1. Legality of the impugned Notice in Form GST MOV-10.2. Procedure followed under Sections 129 and 130 of the Central Goods and Services Tax Act, 2017 (CGST Act).3. Release of truck and goods detained.4. Jurisdiction and validity of the confiscation order under Section 130 of the CGST Act.5. Availability and adequacy of appeal mechanisms under Section 107 of the CGST Act.Issue-wise Detailed Analysis:1. Legality of the Impugned Notice in Form GST MOV-10:The petitioner challenged the notice issued in Form GST MOV-10 dated 26.2.2019, arguing that it sought to impose penalty, redemption fine, and confiscation under Section 130 of the CGST Act without initiating proceedings under Section 129. The petitioner highlighted that the tax and penalty under Section 129 had already been paid, making the subsequent notice under Section 130 legally impermissible. The court noted this argument and issued a notice to the respondents to show cause for the non-compliance with statutory provisions.2. Procedure Followed Under Sections 129 and 130 of the CGST Act:The petitioner pointed out that the proper procedure under Sections 129 and 130 was not followed. Section 129 requires the issuance of a notice and an opportunity for a hearing before passing an order. Only if there is non-compliance with this order can Section 130 be invoked. The court referenced its previous judgment in Synergy Fertichem Pvt. Ltd. v. State of Gujarat, emphasizing that authorities must not bypass Section 129 and directly invoke Section 130 without justifiable grounds or reasons to believe there was an intent to evade tax.3. Release of Truck and Goods Detained:An interim order directed the respondents to release the detained truck and goods upon the petitioner’s payment of tax and penalty under Section 129. The petitioner subsequently availed this benefit and got the truck and goods released. The court acknowledged the compliance with the interim order and the petitioner’s cooperation.4. Jurisdiction and Validity of the Confiscation Order Under Section 130 of the CGST Act:The respondents issued a final order of confiscation in Form GST MOV-11, which the petitioner claimed was never served upon them. The court noted that the confiscation order was available on record but had not been received by the petitioner. The court reiterated the principles from the Synergy Fertichem case, stressing that confiscation under Section 130 requires a strong case and should not be based on mere suspicion. The order must reflect an intense application of mind and disclose materials upon which the belief of intent to evade tax is formed.5. Availability and Adequacy of Appeal Mechanisms Under Section 107 of the CGST Act:The court advised the petitioner to avail the remedy of filing an appeal under Section 107 of the CGST Act against the confiscation order. The court directed that if the petitioner files an appeal, it should be heard on merits without raising issues regarding the delay in filing. The appellate authority was instructed to dispose of the appeal within two weeks from the date of filing.Conclusion:The writ application was disposed of with the court making the rule absolute to the extent that the petitioner should file an appeal under Section 107, which should be heard and disposed of expeditiously. The court emphasized the importance of following proper procedures under Sections 129 and 130 of the CGST Act and ensuring that confiscation orders are based on substantial grounds and not mere suspicions.