S.S. Enterprises Versus Union of India>2019(10)LCX0010

2019(10)LCX0010

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

HONOURABLE MS.JUSTICE HARSHA DEVANI HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

S.S. Enterprises

Versus

Union of India

R/SPECIAL CIVIL APPLICATION NO. 16309 of 2019 decided on 03/10/2019

Advocated By -

MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1 DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1 MR TRUPESH KATHIRIYA, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 2,3

1. Rule. Mr. Trupesh Kathiriya, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents.

2. Having regard to the controversy involved in the present case which lies in a very narrow compass, the petition is taken up for final hearing today.

3. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order of detention dated 15.9.2019 issued under section 129(1) of the Central Goods and Services Tax, 2017 (hereinafter referred to as the ’CGST Act’) as well as the show-cause notice dated 15.9.2019 issued under section 130 of the CGST Act.

. The petitioner, a proprietory concern is engaged in the business of metal scrap. One Ankita Extrusions, Jamnagar, Gujarat placed an order with the petitioner for supply of 12 parcels of brass scrap amounting to Rs.3,77,601/-. The goods were to be delivered from Jaipur, Rajasthan via Nathdwara, Rajasthan to Jamnagar, Gujarat. It is the case of the petitioner that when the goods were being transported from Jaipur to Nathdwara, the original invoice along with the e-way bill were there with the goods. From Nathdwara there was a change in conveyance. Out of a total of 12 parcels, 8 parcels were shifted in a luxury bus along with the original invoice dated 9.9.2019 and e-way bill dated 10.9.2019 and as there was space constraint, the remaining 4 parcels were shifted in a mini cargo. While changing the conveyance and shifting the goods to two different conveyances, inadvertently a photocopy of the e-way bill and invoice was not given to the driver of the mini cargo in which 4 parcels were shifted.

5. The conveyance viz. mini cargo bearing No.RJ-30-GA-7170 in which the 4 parcels of the petitioner were being transported also carried goods of another supplier from Bhilwara, Rajasthan, whose goods were also to be delivered at Jamnagar. On 14.9.2019 during the course of transit, the second respondent intercepted the conveyance at Nana Chiloda and carried out inspection of the goods being transported and asked for necessary documents. As the driver of the conveyance was not carrying the invoice and e-way bill for the goods of the petitioner, the second respondent detained the conveyance and seized the goods and recorded the statement of the driver of the conveyance on 14.9.2019. On the next day i.e. on 15.9.2019, the third respondent passed an order of detention under section 129(1) of the CGST Act and simultaneously issued show-cause notice under section 130 thereof determining tax, penalty and fine amounting to Rs.3,88,234/-.

6. The petitioner gave its reply by letter dated 17.9.2019 and also indicated willingness to pay tax and penalty as leviable under sub-section (c) of section 129 of the CGST Act and requested the second respondent to release the conveyance along with the goods. Since despite the aforesaid position, the respondent did not release the goods or the conveyance, the petitioner has approached this court seeking the relief noted hereinabove.

7. Initially, Ms. Vaibhavi K. Parikh, learned advocate for the petitioner had shown some reservation for payment of fine and penalty in terms of the amount stated by the respondent in the impugned notice of confiscation under section 130 of the CGST Act. However, today under instructions, the learned advocate has stated that the petitioner is ready and willing to pay tax and penalty under protest as computed by the respondent in the notice issued under section 130 of the CGST Act.

8. Having regard to the fact that the proceedings under section 130 of the CGST Act are still pending before the second respondent, this court is of the view that interest of justice would be served if the second respondent is directed to forthwith release the goods as well as the conveyance upon the petitioner paying the tax and penalty amounting to Rs.39,672/- under protest which shall be subject to the final outcome of the proceedings under section 130 of the CGST Act without prejudice to the right of the petitioner to challenge the same in case the same is adverse to the petitioner.

9. This court has also heard Mr. Trupesh Kathiriya, learned Assistant Government Pleader for the respondents.

10. In the above view of the matter, the petition is partly allowed with the following directions. The petitioner shall deposit with the second respondent an amount of Rs.39,672/- as computed by the said respondent in the impugned notice dated 15.9.2019 issued under section 130 of the CGST Act. Upon the petitioner depositing such amount, the 2nd respondent shall forthwith release the conveyance bearing No.RJ-30-GA-7170 together with the goods of the petitioner. Such amount shall be treated as a deposit which has been made by the petitioner under protest and shall be subject to the final outcome of the proceedings under section 130 of the CGST Act, without prejudice to the right of the petitioner to challenge any adverse order, if passed in the said proceedings.

11. Rule is made absolute to the aforesaid extent. Direct service, is permitted.

(HARSHA DEVANI, J)

(SANGEETA K. VISHEN,J)