TaxTMI 
TaxTMI 
TaxTMI 
2025 (4) TMI 1691
X X X X Extracts X X X X
X X X X Extracts X X X X
....invoice dated 03.10.2024 and one tax invoice cum challan dated 03.10.2024 but could not allegedly produce any other document pertaining to the ownership and authorization of vehicle as well as authenticity and ownership of the goods in transit. In the said tax invoice cum challan the name of the consigner is written as KK Enterprise (GSTIN/UIN: 18NYEPK 4248 DZ6) and the consignee is VRIDHI Enterprises (GSTIN/UIN: 07AAYFV4561 H2ZG). On verification it was found from GST Online Portal that KK Enterprises was dealing in Goods and Services of clothing articles, which raised suspicion about the genuineness of the documents produced with the goods. Subsequently the vehicles along with goods were seized under seizure list and the persons were arrested and the aforesaid proceeding under section 318(4)/336(3)/340(2)/3(5) of Bhartiya Nyay Sanghita 2023 (BNS) was started on the same date. 2. Thereafter the accused persons were enlarged on bail on 07.10.2024. the accused petitioner through their learned Advocate made a prayer for releasing the vehicle as well as the seized goods before the court of ACJM, Siliguri on the strength of the power of attorney dated 14.10.2024, executed in Kolkata....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of sterling quality, Mr. Majumder relied upon the ratio laid down in Rajiv Thapar and others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330. 4. He further submits that section 302 (2) /317(2)/317(5) have no manner of application in the instant case. In order to constitute offence of theft, it is required to be established that the accused removed the movable property within the possession of another person without his consent and he did so with a dishonest intention. Accordingly in the instant case where the accused is in lawful possession of the goods on the material date, it does not amount to theft. A charge of committing theft can be lodged when the thing said to be stolen is recovered from the possession of the accused. Similarly, in order to bring home the guilt against a person with the allegation of receiving stolen property dishonestly, he is required to prove that the stolen property was in possession of the accused and that some other persons, other than the accused was in possession of the property, before the accused got possession thereof and that the accused possessed the property with the knowledge that the property is stolen and he got possession of the prop....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he prosecuting agency under the provisions of the BNS without invoking penal provisions under CGST Act is bad in law and the consequential proceedings are liable to be set aside. 8. He further argued that under section 25(6) of the CGST Act, every person shall have a PAN No issued by the Income Tax Authority, in order to be eligible for grant of registration. The petitioner herein has lawfully obtained CGST No. in accordance with said section. Section 68 of the GST Act read with rule 138 was also rightfully complied with by the petitioners herein. Moreover, E way bill is an electronic document generated with common portal evidencing movement of goods of consignment valued more than Rs. 50,000/-. Referring the CGST Act Mr. Mazumder further argued that if the commissioner has reason to believe that a person has committed an offence under section 132, he may by order authorize any officer of central Tax to arrest such person. Section 71 of the Act provides that any officer under the Act not below the rank of Joint Commissioner shall have access to any place of business of a registered person to inspect books of accounts, documents, computers etc. and such other things as he may req....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pment in investigation through officer in charge phansidewa P.S., which discloses that during physical verification by the investigating agency it has been found that consignor KK Enterprises did not conduct any business from the registered address shown in the portal at the time of GST registration. Moreover, it has also been found that the logistics/transport provider i.e. A.M. Logistics having its address at Janak Pur, Kahilpara, Assam is also forged and fabricated. On physical verification it was found that there is no existence of the said logistics and the GST IN No. of such logistics is in active from the portal of GST authorities. 13. Ld. P.P. Submits that on scrutinizing the documents received from the GST authorities it is found that the documents that were uploaded for obtaining registration certificate showing the registered place of business was manufactured, forged and fraudulently obtained with dishonest intention for the purpose of cheating, using the same as a genuine one, for the purpose of transportation of huge quantities of betel nuts /areca nuts which is of foreign origin and thereby attracts the ingredients of the offences of forgery, forgery for the purpo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot call for interference by this court. 15. I have considered submissions made by the both the parties. 16. Section 67(1) of the Act provides that where the proper officer not below the rank of joint commissioner has reason to believe that there is any violation or evasion of tax under the GST Act, he may authorise in writing any other officer of the department to inspect any of the places of business of the taxable persons and under section 67(2), where such officer either pursuant to an inspection, carried out under section 67(1) or otherwise has reason to believe that any goods liable for confiscation or any document or books or things which in his opinion shall be useful for all relevant to any proceeding under the Act are secreted in any place, he may authorise in writing any other officer for search and seizure, of such goods or documents and it also provides that prior to such inspection or search or seizure a recording of reasons by the proper officer for such relief, is required and only thereupon the process of search seizure or confiscation can take place. 17. In the instant proceeding although the ownership in respect of the seized articles namely betel nuts/ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....should be restored to the original owner after the necessity to retain it ceases. In Basavva kom Dyamangouda patil Vs. State of Mysore and another, reported in (1977) 4 SCC 358 the Hon'ble Supreme Court held that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any enquiry or trial particularly where the property concerned is subject to speedy or natural decay and there may other compelling reasons also which may be justified the disposal of the property to the owner or otherwise in the interest of justice and for that it is not must for the investigating agency to produce the seized articles before the court. In SunderBhai Ambalal Desai Vs. State of Gujarat, reported in (2002) 10 SCC 283 Hon'ble Supreme Court held that the power under section 451 Cr.P.C. should be exercised expeditiously and judicially and the court is to see that the owner of the article would not suffer because of its remaining as unused or by its mis appropriation as the court or the police would not be required to keep the articles in safe custody and if proper Panchnama before handing over possession of article is prepared then such documents....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r their wrongful gain. Moreover, till date no one produced any valid document in respect of purchase of seized betel nuts and as such there is reasonable suspicion that the nuts was transporting in illegal way and has been procured in illegal manner. 22. Now so far as return of seized goods to the petitioner is concerned, learned counsel for the state opposed the prayer contending that it is a case of smuggling and the petitioners failed to produce any valid documents in support of the ownership of seized article and as such custody of the goods cannot be given to the petitioners only on the basis of E way bill and the tax invoice etc., which does not establish the ownership. 23. The report relating to investigation raises serious doubt over the authenticity of the documents, the petitioner relied. The suspected documents are subjected to scrutiny in the investigation conducted by police, where the specific allegation is that the documents are fabricated, manipulated and has been used at the behest of other persons indulging in illegal business of betel nuts/areca nuts, using documents in the name of planted persons. Therefore, custody of seized article cannot be given to the....