2018 (12) TMI 66

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....ained provisional release of the goods by furnishing bank guarantee for the applicable tax and penalty as spoken of under Section 129 of the Integrated Goods and Services Tax Act, 2017 (for short "IGST Act"), as also bond for production of the goods and furnishing security for the value of the goods as spoken of under Rule 140(2) of the Central Goods and Services Tax Rules, 2017 (for short "CGST Rules"), is before us aggrieved by the judgment of the learned Single Judge directing an appeal to be filed. 2. The learned Counsel for the appellant points out that the impugned order before the learned Single Judge directed payment of tax and imposed penalty under Section 129 on two grounds; viz: for the violation found of IGST having not been pa....

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.... 4. We would have normally not interfered with the refusal to exercise discretion by the learned Single Judge. However, we notice that the appellant had specifically challenged Rule 140(2) of the CGST Rules. In such circumstances, it would have been appropriate, even if refusing to interfere with the impugned order on grounds of efficacious alternate remedy being available, to independently consider the challenge against the Rule itself. We also notice that the learned Single Judge had relied on the decision of the Division Bench of this Court in Commercial Tax Officer v. Madhu M.B., (2017) 105 VST 244 (Ker.) to find that the statutory mandate of production of the goods has been upheld by the Division Bench and hence there could be no furth....

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....ion raised by the learned Government Pleader is based on Rule 140 of the Kerala Goods and Services Rules, 2017. Rule 140 speaks of the production of the goods on a specified time and day indicated by the appropriate officer for the purpose of confiscation proceedings under Section 130 of the Act. The learned Government Pleader specifically refers to Section 129(6) which speaks of proceedings enabled under Section 130 if the person transporting any goods or if the owner of the goods, fails to pay any amount of tax and penalty as provided in Sub Section (1) within 7 days of such detention and seizure. We do not think that there could be any such interdiction made of the goods in the present case, since there is a Bank Guarantee furnished for ....

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.... Section 130, which would lead to confiscation of the goods itself. This provision is applicable only, in the event of failure on the part of the dealer to pay the applicable tax and penalty. In the present case, the dealer was allowed release of the goods by furnishing bank guarantee for the tax and penalty. The dealer has also furnished a security equivalent to the value of the goods. There is, hence, no question of the applicable tax and penalty being not paid, since at any time the bank guarantee could be enforced. 8. The Senior Government Pleader would contend that the penalty was not imposed on the ground that the goods were not produced. The adjudicating officer merely pointed out the fact that despite an order the goods were not pr....