2024(07)LCX0043

Vishal Steel Supplier

Versus

State Of U.P.

WRIT TAX No. - 741 of 2020 decided on 16-07-2024

Court No. - 2

Case :- WRIT TAX No. - 741 of 2020

Petitioner :- M/S Vishal Steel Supplier
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Praveen Kumar
Counsel for Respondent :- C.S.C.

Hon'ble Piyush Agrawal,J.

1. Heard Mr. Praveen Kumar for the petitioner and Mr. Ravi Shankar Pandey, learned ACSC for the State-respondents.

2. By means of present petition, the petitioner is prayer, inter alia, for the following reliefs:-

"(i) Issue a writ, order or direction, in the nature of certiorari quashing the order dated 30.7.2020 passed by the respondent No. 3 in Appeal No. 2274 of 2019, M/s. Vishal Steel Supplier Vs. Assistant Commissioner, Commercial Tax, Mobile Squad, Unit 10, Ghaziabad.

(ii) Issue a writ, order or direction in the nature of certiorari quashing of order dated 10/11.12.2019 passed by respondent No. 4."

3. Learned counsel for the petitioner submits that goods in question were on its onward journey from Muzaffarnagar to Ghaziabad accompanying all the requisite documents as required under the law i.e. tax invoice, e-way etc. however the same were intercepted at distt. Hapur but at the time of interception no discrepancy whatsoever was found with regard to quality, quantity as well as description of the goods in question. The goods were detained only on the basis of surmises and conjunctures that the goods were not on its normal route and driver of the goods was having mobile number of one dealer of distt. Hapur, therefore, an inference has been drawn that the goods is likely to be unloaded at distt. Hapur without having proper documents.

4. Learned counsel for the petitioner further submits that under the G.S.T. regime, there is no provision for discloser of the route prior to movement of the goods. He submits that the said discloser was in the erstwhile regime i.e. under the VAT Act. He further submits that since it was crushing season and on the way at Moti Nagar, various sugar mills are situated, hence, there was heavy traffic jam and in order to avoid the same, the driver of the goods, has taken another route for Ghaziabad via Hapur. He further submits that goods in question were detained on the way of Ghaziabad via Hapur.

5. In support of his submission, learned counsel for the petitioner has relied upon the judgement of this Court in the case of M/s Om Prakash Kuldeep Kumar Vs. Additional Commissioner Grade -2 and another (2024 UPTC Vol. 116 -19).

6. He further submits that there is no finding recorded by any of the respondent authority that there was any intention to avoid the payment of tax and in the absence of any such finding, the proceeding cannot legally be initiated against the petitioner. He prays for allowing the present writ petition.

7. Per contra, learned Additional Chief Standing Counsel supports the impugned order and submits that the goods in question were likely to be sold at distt. Hapur without paying appropriate taxes and it is evident that truck was found near distt. Hapur in stead of Ghaziabad. He further submits that truck was not on its normal route but the same was on its different route, therefore, the proceeding has rightly been initiated against the petitioner. He prays for dismissal of the present petition.

8. After hearing learned counsel for the parties, the Court has perused the records.

9. It is not in dispute that the goods were coming from Distt. Muzaffarnagar and same was intercepted during transit. As per the document accompanying with the goods in question, no discrepancy was found. Further the goods in question were going up to Distt. Ghaziabad and same was intercepted at distt. Hapur under the pretext that it was not on its normal route as well as the driver of the truck was having mobile number of a dealer of Distt. Hapur, therefore, inference has been drawn that the goods in question will be unloaded at distt. Hapur without having any proper document.

10. It is also admitted that no discrepancy has been pointed out at the time of detention or seizure of the goods with regard to quality or quantity of the goods and the respondent authorities have also not recorded any finding with regard to mens ria to avoid the payment of tax.

11. It is also not the case of the respondents that under the GST Act, the dealer is required to disclose the specific route of its journey for movement of the goods. Learned ACSC also could not show that under the GST Act, the transporter of the goods has to adopt a particular route for transportation of the goods.

12. This Court in the case of M/s Om Prakash Kuldeep Kumar (supra) has held as under :-

"10. Another issue raised that the goods along with truck was not on the route of its destination, therefore, there was intention to evade tax. Under the GST Act, there is no specific provision which bounds the selling dealer to disclose the route to be taken during transportation of goods or while goods are in transit however there was a provision under VAT Act to disclose the rout during transportation of goods to reach its final destination. Once the legislature itself in its wisdom has chosen to delete the said provision, this Court opined that the authorities were not correct in passing the seizure order even if the vehicle was not on regular route or on different route.

11. The power of detention as well as seizure can be exercised only when the goods were not accompanying with the genuine documents provided under the Act. The genuineness of the documents has not been disputed at any stage."

13. Further the respondent authorities have not recorded any finding with regard to intention to avoid the payment of tax, in other words the mens ria is absent. Once there is no finding with regard to mens ria to avoid the payment of tax, the impugned order cannot be sustained in the eyes of law on this ground also.

14. In such circumstance, the writ petition is allowed. The impugned orders dated 30.7.2020 and 10/11.12.2019 are hereby quashed.

15. Any amount deposited by the petitioner in the present proceeding shall be refunded to the petitioner within one month from the date of production of certified copy of this order.

Order Date :- 16.7.2024