TaxTMI 
TaxTMI 
2025 (7) TMI 1699
X X X X Extracts X X X X
X X X X Extracts X X X X
....notice of service of rule for the respective respondents. 4. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs: "A. This Hon'ble Court may be pleased to strike down and declare Section 129 of the GST Acts as being manifestly arbitrary, disproportionate and violating Article 14 and 301 of the Constitution of India; B. This Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ or order quashing and setting aside order dated 4.10.2018 (annexed at Annexure F) and order dated 2.8.2019 (annexed at Annexure I); C. Without prejudice to the above and in the alternative it may please be held that Section 129 of the GST Acts only provides for mechanism for provisional release of goods and does not result in final adjudication of liability under the GST Acts; D. This Hon'ble Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or order directing the learned Respondents to refund the amount of tax and penalty collected and retained pursuant to the im....
X X X X Extracts X X X X
X X X X Extracts X X X X
....etitioners, thereafter, preferred an appeal before the First Appellate Authority for challenging the order in Form GST MOV-09 contending that there was no intention on the part of the petitioners for evading the payment of tax and hence demand of tax and 100% penalty for release of goods was not justified. 6.9 The First Appellate Authority, however, by its order dated 02.08.2019 rejected the first appeal on the ground that the e-way bill is a mandatory document and in absence of complete e-way bill, containing both part A & B, the provisions of Sec. 129(1) of the GST Act would be attracted and the petitioner would be liable to pay the tax and penalty as per the order passed in Form GST MOV-09. 6.10 Being aggrieved, the petitioners have preferred this petition. 7. This Court in the present case, by an order dated 12.12.2019 issued the notice and as the constitutional validity of Sec. 129 of the Central Goods and Services Tax Act, 2017, as well as the Gujarat Goods and Services Tax Act, 2017 was also challenged by the petitioner at the relevant time, notice was also issued to the learned Attorney General and the learned Advocate General of the State. Thereafter, the matter w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o. 5, in the early hours on 04.10.2018, the e-way bill did not contain part B, and therefore, there is a rectifiable technical breach of the goods in not carrying the valid e-way bill, and therefore, the petitioners could not have been saddled with such penalty as provided under Sec. 129 of the GST Act, as it existed at the relevant point of time by levying 100% of the penalty together with the tax leviable. 8.4 It was submitted that the respondent authorities, without giving an opportunity of hearing, has passed the impugned order which is confirmed by the Appellate Authority, and therefore, there is no point in remanding the matter back to the respondent authority to reconsider the same and the issue may be considered by this Court in this petition as in absence of the formation of the GST Tribunal, the only remedy available to the petitioners is to prefer the petition under Article 227 of the Constitution of India to challenge the order passed by the Appellate Authority. In support of his submissions, reliance was placed on the decision of this Court in the case of Landmark Cars Pvt Ltd vs. Union of India & Anr., dated 14.06.2024 rendered in Special Civil Application No. 1487....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... file any objection. But on the contrary, the petitioner had shown willingness to pay the amount of tax and penalty and hence the order was passed on the same day i.e. 04.10.2018. 9.2 It was further submitted that now the petitioner has already deposited the tax and penalty as per the order in Form GST MOV-9 and the goods is released, and therefore, the petitioner could not have agitated the issue before the Appellate Authority challenging the order of levy of tax and penalty as required under Sec. 129(3) of the GST Act. 9.3 It was submitted that the petitioner had an option to set the goods released as prescribed under Sec. 129(1) on receipt of the detention order in Form GST MOV-06. But the petitioner did not avail such opportunity, and therefore, the impugned order was passed for levy of tax and penalty under Sec. 129(3) of the Act. In support of his submissions, reliance is placed on the averments made in the affidavit-in-reply filed on behalf of respondents Nos. 4 and 5, which reads as under: "3.1 The petitioner were supplying two tractors from its depot located at Aslali Gujarat, India to their Bhavnagar based Customer through two Invoices No. 1830504086 and 18....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch goods and conveyances are specified in Circular No. 41/15/2018-GST dated 13.04.2018 (Page No. 50 to 54) issued by Government of India, Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes and Customs. 3.3 As per Notification No. 12/2018 Central Tax dated 07.03.2018, where the goods are transported by the registered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or a public conveyance, by road, the said person shall generate the e-way bill in FORM GST EWB-01 electronically on the common portal after furnishing information in Part B of FORM GST EWB-01. 3.4 The E-Way Bills are generated by the consignor/consignee/transporter on the government portal https://ewaybillgst.gov.in/If the Part-B of the E-Way Bill is not entered then the portal itself highlights that the conveyance "Not Valid for movement as Part B is not entered" (Page No. 55). 3.5 The Respondent No. 5 served the Show Cause Notice/Demand Notice in FORM GST MOV-07 (Page No. 12 to 15) under Section 129(3) of the CGST Act, 2017 and Order of Demand of Tax and Penalty in Form GST MOV-09 on 04.10.2018 (Page No. 18....