(2023) taxcode.in 05 HC
IN THE HIGH COURT OF CHHATTISGARH
Mohin Khan
v.
State of C.G. and Ors.
WPCR No. 276 of 2022
Decided on 06-Jul-23
Shri Ramesh Sinha, Chief Justice and Smt. Rajani Dubey
Add. Info:
For Appellant(s): Mr. Shubhank, Advocate.
For Respondent(s): Mr. Gurudev I. Sharan, Govt. Advocate
Judgment/Order:
Order on Board
Per Ramesh Sinha, Chief Justice
06.07.2023
1. Heard Mr. Shubhank Tiwari, learned counsel for the petitioner. Also heard Mr. Gurudev I. Sharan, learned Govt. Advocate appearing for the State-respondents.
2. The petitioner has preferred this petition being aggrieved by the letter dated 01.02.2022 (Annexure P/1), whereby the Assistant Commissioner of State Tax, Mahasamund, rejected the application of the petitioner for releasing of the vehicle Truck bearing registration No. OD-02-AY-8394 on supurdnama.
3. By way of present writ petition, the petitioner has prayed for following relief(s):
“1 That, the Hon’ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner for kind perusal of this Hon’ble Court.
2 That, this Hon’ble Court may kindly be pleased to issue a writ/writs, direction/directions, order/orders to direct the Respondent Authorities for releasing the vehicles bearing No. OC-02-AY-8394 within stipulated time.
3. That, this Hon’ble Court may kindly be pleased to issue a writ/writs, order/orders, direction/directions to direct the Respondent Authorities to pay legal cost and expenses since the vehicle is lying idle for the period of over 13 months.
4. That, this Hon’ble Court may kindly be pleased to issue a writ/writs, order/orders, direction/directions to direct the respondent authorities to pay the amount of damages as the vehicle is kept unused by the owner due to whih he is facing financial crunch.”
5. That, this Hon’ble Court may kindly be pleased to grant any other relief, which it deems fit and proper.”
4. It has been argued by learned counsel for the petitioner that the petitioner earlier had filed a CRMP No. 227/2021, which was disposed of by this Court on 15.09.2021 directing the petitioner to move an application before the authority concerned for releasing the vehicle as per provision of Goods and Services Tax Act (hereinafter referred to as ‘GST Act’). In pursuant of the same, on 20.09.2021, the petitioner appears to have moved an application (Annexure P-3) praying for release of vehicle on supurdnama. Learned counsel submitted that in the light of proviso 3 to Section 129 of the GST, which prescribes that the conveyance shall be released on payment by the transporter of penalty under sub-section (3) or Rs. 1 Lakh, whichever is earlier, which has not been considered by the authority, which is not only arbitrary but discriminatory in nature and violative of Article 14 of the Constitution of India.
5. On the other hand, learned State counsel has submitted that as per the return filed by the State, it has been averred that the proviso of Section 129 of the GST Act will not be applicable in the case of the petitioner as the same proviso has been inserted vide Finance Act, 2021, which came into effect from 1st January, 2022, and there is no retrospective effect has been given to the said provision, therefore, the petitioner cannot take his vehicle just by giving a minor amount of Rs.1 Lakh as his liability to pay penalty is Rs.34,65,144/-. Learned counsel further submitted that Section 129 of the GST Act forms part of the machinery provided under the Act to check the evasion of tax and a detention can be justified if there is a contravention of the provision of the GST Act, in relation to transportation of goods while in transit, as in the present case. Being the revenue measure, Section 129 of the GST Act, the officer authorized for detaining of goods and vehicles has no discretion to condone the procedural lapse or giving any relax to the person against whom a prima-facie case of tax evasion is apparent. It was further pointed out by the learned State counsel that after confiscation proceeding, the notices were served to the petitioner on 02.11.2021 under Section 121 of the GST Act, whereby the petitioner has been informed about the detention of his vehicle but the petitioner did not reply to the said notice dated 02.11.2021. Thereafter, on 11.11.2021, the petitioner was served demand notice i.e. Form GST MOV-09, whereby the demand of tax and penalty was ordered and that too the petitioner did not respond and did not pay the amount as has been instructed in the aforesaid order dated 11.11.2021 and the petitioner has preferred an application for releasing of vehicle in the light of amended provision of Section 129 of the GST Act, which came into force w.e.f. 1st January, 2022, but the said amended provision is not applicable in the instant case as the proceedings of detention of the vehicle of the petitioner was instituted on 04.01.2021, therefore, the petitioner cannot avail the benefit of the said amended provision. The said amendment has been given prospective effect, therefore, the reply of the Assistant Commissioner (Annexure P-1) is fully justified and the petition is liable to be dismissed being devoid of merit.
6. After having considered the submission advanced by learned counsel for the parties and having perused the pleadings made in the present petition along with the return of the State, the contention raised by the learned State counsel that the amended provision of Section 129 of the GST Act, which has come into effect on 1st January, 2022, cannot be made applicable in the case of the petitioner, has substance. Hence, the prayer of the petitioner for release of the vehicle is accordingly rejected.
7. The instant petition is accordingly dismissed.
(Rajani Dubey)
Judge Chief
(Ramesh Sinha)
Justice
Original judgment copy is available here.