Star Enterprise Vs. State of Gujarat and Anr. – Gujarat High Court

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🧠 HeadNote & Summary

(2021) taxcode.in 25 HC

IN THE HIGH COURT OF GUJARAT

Star Enterprise
v.
State of Gujarat and Anr.

R/Special Civil Application No. 14290 of 2021
Decided on 23-Sep-21

Ms. Justice Sonia Gokani and Mr. Justice Rajendra M. Sareen

Add. Info:

Impugned Order: R/Special Civil Application No. 14290 of 2021 [On note for speaking to minutes of order dated 23/09/2021 in R/SCA/14290/2021].

For Appellant(s): Mr. Ashutosh S Dave (8865) and Mr. Jigar G Gadhavi (5613).

For Respondent(s): Mr. Jigar G Gadhavi (5613).

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Judgment/Order:

ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. The petitioner, which is a proprietorship firm, received order for purchase of arecanut from a buyer in New Delhi. The petitioner appointed transporter for such transportation. It was specifically conveyed to the transporter that movement of goods was to be commenced only after both tax invoice as well as e-way bill were given to the driver.

2. It is his say that the area of the petitioner was facing intermittent network outages and therefore, the petitioner could not generate immediately generate e-way bill from the portal. The transporter, being in a hurry to complete the task assigned and as goods had already been loaded onto the vehicle, commenced movement of goods without waiting for e-way bill to be generated and given by the petitioner.

3. The truck with the goods was intercepted by the 2nd respondent authority. The driver duly produced tax invoice as well as transport receipt.

4. According to the petitioner, there was no discrepancy found in the quantity as per invoice and the quantity loaded on the conveyance.

5. The authority however detained the goods since e-way bill was not available with the driver.

6. On 10.09.2021, detention order and confiscation notice were served to the petitioner. Apart from nonavailability of e-way bill, the authority also alleged that the registration of the recipient was being shown as “suspended” and that the goods had been undervalued.

7. The petitioner immediately addressed a letter to the authority on 17.9.2021 and requested for provisional release of the goods and vehicle in accordance with the provisions of Section 67(6) of the Central / Gujarat Goods and Service Tax Acts (hereinafter referred to as “the GST Act” for short). They filled the Form and also raised objection in relation to invocation of powers of confiscation under section 130 of the ACT

8. In so far as the allegation of suspension of registration of the buyer was concerned, the petitioner pointed out that there seemed to be some error on the part of the authority as the registration of the buyer was very much active. Written reminder was given by the petitioner on 20.09.2021. However, there is no movement for provisional release of the vehicle and the goods. Hence, petitioner is before this Court with the following prayers :

“A. 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 Respondents to forthwith provisionally release the goods number KA-17-C- 1451 in terms of the provisions of Section 67(6) of the GST Acts; truck

B. In any case 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 quashing and setting aside confiscation notice dated 10.9.2021 as being wholly without jurisdiction and illegal and this Hon’ble Court may be pleased to direct release of the goods and truck number KA-17-C-1451 in terms of Section 129 of the GST Acts;

C. Pending notice, admission and final hearing of this petition, this Hon’ble Court may be pleased to direct the Respondents to forthwith release the truck number KA 17-C-1451 along with goods contained therein and further proceedings pursuant to impugned confiscation notice dated 10.9.2021 (annexed at Annexure A) may please be stayed;

D. Ex parte ad interim relief in terms of prayer C may kindly be granted;

E. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioner shall forever pray.”

9. We have heard Mr. Uchiet Sheth, learned advocate for the petitioner. He has taken us through the pleadings as well as materials which has been adduced.

9.1. Mr. Sheth, learned advocate for the petitioner relied upon the decision in the case of Special Civil Application No.5172 of 2020. He has requested that this Court may issue a writ of mandamus or any other appropriate writ or order directing the respondents to forthwith provisionally release the goods number KA-17-C-1451 in terms of the provisions of Section 67(6) of the GST Acts.

10. On an advance notice to Mr. Soaham Joshi, learned AGP is requested to assist this Court. He has drawn attention of this Court to the fact that on the next scheduled date is 24.09.2021. He also assured that the officer concerned shall address the grievance of the petitioner in accordance with law and requested that this Court may not interfere.

11. We have noticed the chronological events, more particularly the date of order of detention of the truck with the goods on 07.09.2021 in the Form of GST MOV 10. They have come on record. The communication to the concerned authority by the petitioner on 16.09.2021 raises both the issues.

12. The petitioner herein is the owner of the goods and it is his case that his vehicle and goods both have been seized by the GST Authorities and when the goods were being transported in the alleged contravention of the Act and the Rules, order is passed of detention under the GST MOV 10 and as the matter is at the stage of GST MOV 10, this Court would not like to enter into the merits of the matter. However, we have taken note of the serious concern raised before us by the petitioner of provisional release of the goods and vehicle prior to moving of such stage of MOV.

13. The application preferred by the petitioner shall need to be considered by the authority for this being the goods in transit on applying the provisions of section 67(6) of the Act. Request shall be made by the petitioner to consider such provisional release on 24.09.2021 or on any other scheduled date.

14. Let a speaking order be passed by the authority / officer concerned in this regard on the issue of provisional release to enable the petitioner to take necessary legal course if in case there arises any need for challenge. The period of two weeks shall be allowed before the officer concerned chooses to pass the order of confiscation in the form of GST MOV 11. We choose to dispose of this writ application along the line of the order passed by this Court in Special Civil Application No.5172 of 2020 dated 26.02.2020 with a direction to the respondent No.2 to look into the application and pass appropriate order in accordance with law. Since the hearing is scheduled tomorrow, we direct to first consider the application for release of the goods and vehicle in accordance with law. Let this exercise be undertaken without further loss of time.

While doing so the officer concerned shall also regard the directions and guidelines provided by this Court in the case of F.S. Enterprise Versus State of Gujarat decided on 11.10.2019.

This Court has chosen not to enter into the merits of the matter.

Petition is disposed of in above terms.

D.S. Permitted.

(SONIA GOKANI, J)
(RAJENDRA M. SAREEN,J)

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Star Enterprise
v.
State of Gujarat and Anr.

R/Special Civil Application No. 14290 of 2021 [On note for speaking to minutes of order dated 23/09/2021 in R/SCA/14290/2021]
Decided on 28-Sep-21

Coram: Ms. Justice Sonia Gokani and Mr. Justice Rajendra M. Sareen

Add. Info:

For Appellant(s): Mr. Ashutosh S Dave(8865) and Mr. Jigar G Gadhavi(5613)

For Respondent(s): Mr. Jigar G Gadhavi(5613) and Mr. Soham Joshi, Asst. Government Pleader/PP(99)

ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

Note for speaking to minutes is filed urging that as there were similar three matters on the particular day, the order of Special Civil Application No.14273 of 2021 has been transcribed in the present matter. The entire order shall be replaced by recalling the order dated 23.09.2021 and the new order shall be as under:

“1. The petitioner is a proprietary firm duly registered and is holding the GSTIN No.24AOXPP6994H1ZX. He deals in wholesale/retain purchase and sale of unwrought aluminum and ferrous waste and scrap. His grievance is with regard to the detention of conveyance bearing registration No.GJ01-DY-7177 which was intercepted by the respondent No.2 on 29.08.2021 at Shamlaji. The owner of the conveyance is one Shree Ramam Krishna Freight Carrier based at Ahmedabad. This was roved by one Kuldeep Amreshkumar Dubey, who is the resident of Uttar Pradesh. According to the petitioner, the respondent No.2 formed in opinion that the physical verification of the goods in transit was needed in order to ascertain the correctness of the information supplied and the orders have issued in Form MOV-2, with these documents, the e-way bill had been tendered for the satisfaction of the officer. He chose to verify the goods in question physically and issued the report in Form MOV-4 on 29.08.2021.

3. On the ground that the purchase made by the petitioner allegedly were bogus and the same was a camouflage to hide the circular billing, the notice for confiscation under Form MOV-10 without affording the opportunity of hearing to the petitioner is lamented. Accordingly, the present petition with the following prayers:

“8…

(a) Quash and set aside impugned notices issued by the Respondent no.2 at Annexure A to the petition and further be pleased to direct the Respondents to release the goods in question and the conveyance bearing registration no. GJ01 DY 7177;

(b) Pending notice, admission and final hearing of this petition, this Hon’ble Court may be pleased to direct the Respondent No.2 to forthwith release the goods in question along with concerned bearing no. GJ01 DY 7177 detained/seized in purported exercise of powers under Section 129 and 130 of the Act;

(c) Such other and further reliefs which the Hon’ble Court deems fit in the interest of justice;

(d) To award the cost of the petition.”

4. We have heard the learned advocate, Mr.Ashutosh Dave appearing for the petitioner. He has taken us through the pleadings as well as materials which has been adduced.

4.1. Learned advocate, Mr.Ashutosh Dave appearing for the petitioner has relied upon the decision in the case of Special Civil Application No.5172 of 2020. He has requested that this Court may issue a writ of mandamus or any other appropriate writ or order directing the respondents to forthwith provisionally release the goods number GJ-01-DY-7177 in terms of the provisions of Section 67(6) of the GST Acts.

5. On an advance notice to learned AGP, Mr.Soham Joshi is requested to assist this Court. He has drawn attention of this Court to the fact that the next scheduled date is 24.09.2021. He also assured that the officer concerned shall address the grievance of the petitioner in accordance with law and requested that this Court may not interfere.

6. We have noticed the chronological events, more particularly the date of order of detention of the truck with the goods being 29.08.2021 in the Form of GST MOV 10.

7. The petitioner herein is the owner of the goods and it is his case that vehicle and goods both have been seized by the GST Authorities and when the goods were being transported in the alleged contravention of the Act and the Rules, order is passed of detention under the GST MOV-10 and as the matter is at the stage of GST MOV 10, this Court would not like to enter into the merits of the matter. However, we have taken note of the serious concerned raised before us by the petitioner of provisional release of the goods and vehicle prior to moving of such stage of MOV-10.

8. The application preferred by the petitioner shall need to be considered by the authority for this being the goods in transit on applying the provisions of Section 67(6) of the Act. Request shall be made by the petitioner to consider such provisional release on 24.09.2021 or on any other scheduled date.

9. Let a speaking order be passed by the authority/officer concerned in this regard on the issue of provisional release to enable the petitioner to take necessary legal course if in case there arises any need for challenge. The period of two weeks shall be allowed before the officer concerned chooses to pass the order of confiscation in the form of GST MOV 11. We choose to dispose of this writ application along the line of the order passed by this Court in Special Civil Application No.5172 of 2020 dated 26.02.2020 with a direction to the respondent No.2 to look into the application and pass appropriate order in accordance with law. Since the hearing is scheduled tomorrow, we direct the respondent No.2 to first consider the application for release of the goods and vehicle in accordance with law. Let this exercise be undertaken without further loss of time.

10. While doing so, the officer concerned shall also regard the directions and guidelines provided by this Court in case of F.S. Enterprise vs. State of Gujarat decided on 11.10.2019.

11. This Court has chosen not to enter the merits of the matter.

13. Over and above the regular mode of service, direct service through e-mode is also permitted, TODAY.”

Note for speaking to minutes stands disposed of. Sd/- (SONIA GOKANI, J) Sd/- (RAJENDRA M. SAREEN,J)

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Original judgment copy is available here.