2020 (9) TMI 162 - HC - GST

Appellate court overturns tax refund order in GST case, emphasizes validity of govt orders

The Secretary to Govt. Department of Finance, The Commissioner ofCommercial Taxes, The Commercial Tax Officer, The Assistant Commissioner of Commercial Taxes (Enforcement) Vijayapur, The Joint Commissioner of Commercial Taxes Versus M/s. K.S. Arcanut Stores, M/s. T.K.K. Traders, Mr. V.N. Nirmalan

The appellate court set aside the Single Judge's order permitting the petitioners to pay tax and penalty and ordering the refund of auction proceeds in a ... Detention order - Confiscation of goods alongwith the conveyance - arecanut - Section 129 (3) of CGST Act - HELD THAT:- Until and unless the validity of the order is either upheld or quashed, no other ancillary relief can be given to the petitioners. When it is the specific contention of the Government that the goods which have been carried in conveyance is not belonging to the respondents and they are not the owners, then under such circumstances, the learned Single Judge ought not to have passed the order under Section 129 (1) (a) of the Act. A close scrutiny of Section 129 (1)(a) of the Act indicates that if the owner come forward to pay the tax payable on such goods equal to 100% of the tax payable, then Section 129 (1)(a) of the Act is attracted. But when already the appellants have passed an order under Section 129 (1)(b) of the Act, by rejecting the documents tendered by the person in charge, until and unless that order is set aside, no order can be passed under Section 129 (1)(a) of the Act. Without expressing anything on the merits of the case, the impugned order is not in consonance with the provisions of law. Firstly he has to say whether the orders passed by respondent - Government are in accordance with law or not. Then, if it is not in accordance with law, he has to set aside the same, then pass the suitable order. By keeping pending those orders, whatever order has been passed is not sustainable in law. It appears to be contrary to each other. The matter is remitted to the learned Single Judge for considering afresh all the points and to pass an order in accordance with law - Appeal allowed by way of remand. Issues Involved:1. Legality of the detention and confiscation orders under Sections 129 and 130 of the Central Goods and Services Tax Act, 2017.2. Jurisdiction of the Single Judge under Article 226 of the Constitution of India.3. Validity of the refund order of the auction proceeds.Issue-wise Detailed Analysis:1. Legality of the Detention and Confiscation Orders:The case revolves around the interception of a goods conveyance carrying arecanut, which was allegedly involved in tax evasion. The Vigilance Cell of Commercial Tax intercepted the vehicle and found discrepancies in the documents provided by the driver. The driver’s statement indicated that the goods were loaded from different sources, which was not substantiated by any documents. The authorities concluded that the goods did not originate from Kerala and were not related to the documents tendered. Consequently, the goods were confiscated, and an auction was conducted. The respondents challenged the orders of detention and confiscation under Sections 129 and 130 of the Act. The Single Judge permitted the petitioners to pay applicable tax and penalty and ordered the return of the auction proceeds. However, this decision was contested by the State on the grounds that the ownership of the goods was in question and the validity of the transaction was not determined.2. Jurisdiction of the Single Judge under Article 226:The State argued that the Single Judge should not have exercised extraordinary jurisdiction under Article 226 of the Constitution when an efficacious and alternative remedy was available under Section 107 of the Act. The State contended that the Single Judge exceeded his jurisdiction by ordering the refund of the auction proceeds without determining the ownership and validity of the transaction. The Single Judge’s reliance on Section 129(1)(a) was questioned, as the order under Section 129(1)(b) was already passed, rejecting the documents tendered by the person in charge.3. Validity of the Refund Order of the Auction Proceeds:The Single Judge ordered the refund of the auction proceeds after deducting the applicable tax and penalty. The State argued that this was incorrect as the ownership of the goods was in question, and the validity of the transaction was not determined. The State contended that the auction proceedings were not challenged by the respondents, and the order passed by the Single Judge was not sustainable in law. The appellate court noted that the Single Judge did not determine whether the impugned orders were sustainable in law before granting ancillary relief. The appellate court emphasized that the validity of the orders must be upheld or quashed before any ancillary relief could be granted.Conclusion:The appellate court found that the Single Judge’s order was not in consonance with the provisions of law. The court highlighted that the Single Judge should have first determined the validity of the orders passed by the government before granting any relief. The appellate court set aside the impugned order and remitted the matter to the Single Judge for fresh consideration of all points and to pass an order in accordance with law. The appeals were allowed, and the matter was remitted to the Single Judge for reconsideration.