2024 (4) TMI 291

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nder Section 122 of the Act. 4. In the second writ petition bearing Writ Tax No.1600 of 2022, the order dated December 3, 2022 passed by the respondent No.3 (being the Assessing Officer) and the order dated August 3, 2022 passed by the First Appellate Authority under Section 107 of the Act are under challenge. These orders have been passed under Section 74 of the Act for liability arising out of additional stock that was present with the petitioner. 5. In relation to Writ Tax No.916 of 2022, the issue to be answered is whether mere presence of additional stock would result in confiscation and subsequent penalty. 6. Counsel on behalf of the petitioner has relied on two judgments of the coordinate Bench of this Court in the case of M/s Maa Mahamaya Alloys Pvt. Ltd. vs. State of U.P. and others reported in 2023 82 NTN DX 393 and in the case of M/s Metenere Ltd. vs. Union of India (Writ Tax No.360 of 2020, decided on December 17, 2020) in support of his arguments. 7. From a perusal of the judgment in the case of M/s Maa Mahamaya Alloy Pvt. Ltd. (supra), it is clear that the issue was decided against the respondents. One may rely upon the paragraphs provided below for the sa....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....to evade payment tax and penalty can be levied by invoking Clause (iv) only when the department establishes that there were a contravention of the Act and Rules coupled with the 'intent to make payment of tax'. There is no such allegation in the show cause notice or any of the orders, I have no hesitation in holding that even the Clause (iv) of sub-section (1) of Section 130 would not be attracted in the present case." 8. Furthermore, the coordinate Bench in M/s Maa Mahamaya Alloy Pvt. Ltd. (supra) held that confiscation of the stock cannot be done only on the basis of eye estimation. The relevant paragraph is delineated below:- "19. Coming to the Issue no.IV with regard to the determination of value of the goods. Section 15 of the GST Act provides for valuation of the taxable supply. In furtherance of the provisions contained in the Act, Rules have been framed and Rule 27 of the said Rules provides for the manner of valuation of supply of goods or services, however, in the present case, the valuation of the goods is required to be done in terms of the mandate of Section 15(1) read with Section 15(2) and read with Section 15(3). In the said Section 15 or the Rules f....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....alty belatedly. 12. It is trite law that the burden of proof for imposition of penalty and confiscation of goods is on the Department and the same cannot be done on estimates when it is clear that the Department could have carried out a physical verification based on counting and weighing of the goods. In light of the same, the entire finding with regard to excess stock, that is based on estimate, is liable to be rejected outrightly. 13. In light of the above, the impugned orders in Writ Tax No.916 of 2022 with regard to penalty and confiscation are quashed and set aside. 14. Similarly, the entire proceedings that have been initiated under Section 74 of the Act that have culminated in the writ petition bearing Writ Tax No.1600 of 2022, wherein challenge has been raised against the order passed by the Assessing Officer and the order passed in appeal with regard to liability of tax under Section 74 of the Act are to be quashed and set-aside as the same are based on finding that there was excess stock. As the said finding of excess stock is clearly without any basis in law and illegal, the initiation of proceedings under Section 74 of the Act cannot stand on any footing. 1....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....—या है। सर्वेक्षण के समय बनाए गये स्टाक शीट में से किसी भी स्टाक शीट के साथ माल को छोटे छोटे टुकड़ों में वजन कराने की तकपट्टी जिसमें एक बार में किए गये वजन को लिखा जाता है, नहीं बनायी गयी जबकि व्यापार स्थल पर वजन कराने का कांटा उपà¤....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....‡à¤• पन्ने पर व्यापारी की ओर से उपस्थित व्यक्ति के हस्ताक्षर न होने एंव पंचों के हस्ताक्षर न होने से यह स्पष्ट हो रहा है कि अधिकारियों द्वारा स्टाक गणना करने के विभागीय परिपाट का अनुपालन भी नहीं किया गया है। मेरे द्वारा भौतिक सत्à....