2022 (10) TMI 673 - HC - GST

Appeal allows release of detained goods; consignor paid tax; Rule 140 inapplicable; furnish bank guarantee for penalty within 2 weeks.

Babu Pulikottil Chakkappan, Proprietor, Chakkappan Automobiles Versus The State Of Kerala, Commissioner Of Kerala State, State Tax Officer, Ernakulam, Jiolat Auto Gas Industries and Nikita Logistics Solution,

Kerala HC allowed the appeal and directed release of detained goods to the appellant, noting the consignor had remitted the tax and the appellant had ... Maintainability of petition - availability of alternative remedy of appeal - Seeking release of detained goods - production of updated E-way bill or not - Rule 138(2A) of the CGST Rules - HELD THAT:- The Rule reads that where the goods are transported by railways or by air or vessel, the e-way bill shall be generated by the registered person, being the supplier or the recipient, who shall, either before or after the commencement of movement, furnish, on the common portal, the information in Part B of FORM GST EWB-01 - Rule 140 of the CGST Rules relate to release of seized goods on provisional basis. In the present case Ext.P6 final order imposing tax and penalty is passed and hence, the argument that bank guarantee for the applicable tax, interest and penalty payable is to be submitted does not deserve merit. Since the tax amount has already been remitted by the consignor and the appellant has already furnished bank guarantee for the balance amount equivalent to the tax demanded, the goods in custody of the respondent can be released to the appellant. We have not interpreted Rule 138 of the KGST Rules 2017 and the said fact is left open to be decided in appropriate case. Appeal allowed - the first respondent is directed to release the goods if the appellant furnishes the bank guarantee for the penalty amount, if not already done within a period of two weeks from today. Issues:Interpretation of Rule 138(2A) of the CGST Rules regarding the generation of E-way bill for goods transported by railways, and the requirement of updating Part B before or after the commencement of movement. Application of Rule 140 of the CGST Rules for the release of seized goods on a provisional basis. Consideration of the circumstances in a case where tax has been paid, penalty furnished in the form of a bank guarantee, and the goods are in custody pending compliance with E-way bill requirements.Interpretation of Rule 138(2A) of the CGST Rules:The appellant, a dealer in automobile goods, purchased a CNG kit from a supplier in New Delhi and faced discrepancies in the E-way bill during transportation. The Tax Officer intercepted the goods due to issues with Part B of the E-way bill not being updated before movement. The appellant argued that as per Rule 138(2A), Part B only needed to be updated before taking delivery from the Railways. The government pleader contended that the proviso to Rule 138(2A) mandates the Railways to deliver goods only upon production of the E-way bill. The Court analyzed the rules and held that the outer time limit for updating Part B is before taking delivery, allowing for the release of goods upon compliance.Application of Rule 140 of the CGST Rules:The government pleader argued that seized goods can be released under Rule 140 by submitting a bank guarantee for the applicable tax, interest, and penalty. However, the Court noted that Rule 140 pertains to the provisional release of goods, and since a final order imposing tax and penalty was issued, the requirement for a bank guarantee did not apply in this case.Consideration of Circumstances and Judgment:Upon hearing the appeal, the Court directed the release of the goods subject to the appellant furnishing a bank guarantee for the penalty amount. The appellant complied with this condition, and the Court emphasized that the tax had been paid while the penalty was secured through the bank guarantee. The Court found the circumstances unique and decided to release the goods to the appellant, leaving the interpretation of Rule 138 of the CGST Rules open for future cases. The judgment modified the Single Judge's decision, allowing the release of goods upon the appellant providing the bank guarantee within a specified time frame, clarifying that the ruling was based on the case's specific circumstances and not intended as a precedent for Rule 138 interpretation.This detailed analysis of the judgment from the Kerala High Court addresses the issues surrounding the interpretation of Rule 138(2A) of the CGST Rules, the application of Rule 140 for the release of seized goods, and the specific circumstances leading to the decision to release the goods in this case.