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2021 (4) TMI 553 - Commissioner - GSTClandestine removal - allegation that the goods kept unaccounted with intent to evade payment of CGST/SGST by supplying the same clandestinely - books of accounts/stock register maintained at the time of search or not - excess stock were found against the entries made in books of accounts/stock register at the time of search or not - value of seized goods are correct or not - Confiscation - penalty u/s 122(1)(xvi) and (xviii) of CGST Act, 2017. Whether books of accounts/stock register maintained at the time of search and whether excess stock were found against the entries made in books of accounts/stock register at the time of search and whether seized goods is liable for confiscation or not in terms of Section 130 (1) (ii) (iv) of CGST Act and rules made thereunder? - HELD THAT:- There is no doubt that in fact the books of accounts of the assessee/respondent was not available in the premises of the assessee/respondent at the time of search in the respective premises and it was lying only in the premises of the other unit i.e. M/s Tirupati Plywood Industries, the same fact admitted by the assessee/respondent in his submission also. Therefore, it was enough reason to believe to the search team to seize the goods which were lying at the search premises as the related records/ documents were not available - the investigating team has rightly seized the goods which were lying without any records which are required as per CGST and Rules. The records/books of accounts were not properly maintained by the assessee/respondent. Hence excess goods found during the search proceedings was rightly been seized by the search team and the same is also liable to confiscation under Section 130 (1) (ii) and (iv) of the CGST Act, 2017 - seized goods valued to ₹ 4,32,333/- is liable to confiscation in terms of Section 130 of CGST Act and rules made thereunder. Since, the goods has already been released by the adjudicating authority therefore, there are no other option but to impose fine in lieu of confiscation of released goods under Section 130(2) of CGST Act, 2017. Whether value of seized goods are correct or not? - HELD THAT:- The adjudicating authority has ignored the admission/acceptance of value of Proprietor and he incorrectly re-determined the value of seized goods. Therefore, the adjudicating authority has grossly erred in releasing the seized goods by taking value amounting to ₹ 2,74,767/- instead of ₹ 4,32,333/- whereas the entire seized goods (considering the value ₹ 4,32,333/-) should have been ordered to be confiscated as the said seized goods were unaccounted in violation of Section 35 of CGST Act read with Rule 56 of CGST Rules, 2017. Whether penalty is imposable upon the Firm/Assessee under Section 122(1)(xvi) and (xviii) of CGST Act, 2017 or not? - HELD THAT:- It is established that the assessee did not maintained the proper books of account at the time of search proceedings hence he violated the provisions of Section 35 of CGST Act and Rules made thereunder. Accordingly, the penalty under Section 122(1) (xvi) and (xviii) of CGST Act, 2017 upon the assessee is very well attracted in the instant case. Confiscation of goods ordered - fine of ₹ 1,00,000/- imposed - penalty imposed under Section 122(1) (xvi) and (xviii) of CGST Act upon M/s Agarwal Sales, F1(a), Shri Khatu Shyamji Industrial Area, Reengus, Distt-Sikar. However, since the adjudicating authority has imposed penalty amounting to ₹ 13,730/- in the said section hence if it has been deposited by the assessee, the same may be appropriated. Appeal disposed off.
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