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GST - Case Laws
Showing 21 to 40 of 156 Records
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2020 (2) TMI 1353
Refund of CGST and SGST - Unutilized ITC - Export of goods - zero rated supply - period July, 2017 - refund of CGST ₹ 6,36,878/-, IGST ₹ 11,219/- was rejected on the ground that the appellant has claimed DBK in Group A and also not submitted invoices - HELD THAT:- The appeal filed by the appellant on the ground that the adjudicating authority has rejected the drawback claims for the transition period of one month i.e. July, 2017 on account of that the appellant has claimed DBK in Group ‘A’ and not submitted the invoices relating to ITC of IGST and SGST - further it is observed that consequent upon implementation of GST with effect from 1-7-2017, Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 were also continued for a transition period of three months i.e. from July, 2017 to September, 2017 vide [Circular] No. 22/2017-Cus., dated 30-6-2017.
According to notes & conditions No. 7 to Notification No. 131/2016-Cus., dated 31-10-2016, “if the rate indicated is the same in the columns (4) and (6), it shall mean that the same pertains to only Customs component and is available irrespective of whether the exporter has availed of Cenvat Facility or not”. I also find that the appellant’s commodity are classifiable under Tariff Item No. 6914 “Other Ceramic Articles”, (Invoice No. 17/25, dated 29-7-2017) under Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017 which attracts the same rates of drawback i.e. 1.5% under both the columns (4) & (6). Hence, it is evident that the appellant has claimed drawback of Customs component only for their export - Further, as per Circular No. 22/2017-Cus., dated 30-6-2017, which deals with drawback claims for the transition period, clearly provides that “While a transition period of three months has been allowed, the exporters shall have an option to claim only Customs portion of AIRs of duty drawback i.e. rates and caps given under column (6) & (7) respectively of the Schedule of AIRs of duty drawback and avail input tax credit of CGST or IGST or refund of IGST paid on exports”. Furthermore, C.B.E. & C. vide Circular No. 37/11/2018-GST in F. No. 349/47/2017-GST, dated 15-3-2018 has also clarified that a supplier availing drawback only with respect to basic customs duty shall be eligible for refund of unutilized input tax credit of Central tax/State tax/Union territory tax/Integrated tax/Compensation Cess under the said provision.
The appellant has also submitted the copies of invoices of ITC of IGST which were not submitted at the time of personal hearing held before the adjudicating authority resulting to rejection of refund claim. The appellant is directed to submit all such invoices before the adjudicating authority for verification.
The appeal filed by the appellant allowed only to the extent of rejection of refund of IGST amounting to ₹ 2245/- and CGST amounting to ₹ 1,10,755/- subject to verification by the adjudicating authority.
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2020 (2) TMI 1317
Vires of Rule 117 of CGST Rules - time limittaion - filing to form TRANS-1 - HELD THAT:- In view of the clear finding that in the instant case, there is no dispute with regard to the attempt made by the petitioner to log into the system within the time limit concerned, it is ordered that the impugned Rejection Order as per Ext.P8 etc, will stand quashed - Consequently it is ordered that the competent Authority among official respondents 1 and 3 to 6 shall take steps to immediately permit the petitioner to revise their TRAN – 1 Forms either electronically or manually without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment or within such time limit that may be appropriately fixed by the competent Authority among the above said respondents as they deem fit and proper in the facts and circumstances of this case or within any shorter time limit.
Petition disposed off.
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2020 (2) TMI 1311
Anti Profiteering - Constitutional Validity of provisions of Section 171 of the CGST Act - HELD THAT:- Issue notice confined to the prayer. Learned counsel for respondent No. 1, learned counsel for respondent Nos. 2 & 3 and learned counsel for respondent No. 4 accept notice. They pray for and are permitted to file counter affidavit within four weeks.
The petitioner is directed to deposit 50% of the principal profiteered amount. The said amount shall be deposited in two equal monthly instalments. The amount deposited by the petitioner shall be kept in interest bearing Fixed Deposit Receipts by the Registry.
List on 21st April, 2020.
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2020 (2) TMI 1300
Detention order - goods alongwith vehicle - SCN duly served under section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017, upon the driver of the vehicle on the same date, i.e. 11th September, 2019 - HELD THAT:- In the said show cause notice, the date fixed for filing of the reply was 18th September, 2019. In spite of a specific date fixed for filing of reply, no reply was forthcoming from the petitioner. As such, an order under section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017, was passed determining the amount of tax and penalty for release of the goods and vehicle. This order was passed on 29th September, 2019. In the said order a total amount of ₹ 28,53,563.64p (Rupees twenty eight lakhs fifty three thousand five hundred and sixty three and paise sixty four only) was demanded as amount of tax and penalty for release of goods and vehicle.
This order was sent by a letter dated 30th September, 2019 by Registered Post. Till date, this order has not been complied with - As such, the discretionary jurisdiction of this Court cannot be exercised under Article 226 of the Constitution of India in order to grant such reliefs to the petitioner as prayed for, considering the facts of the present case.
Petition dismissed.
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2020 (2) TMI 1299
Confiscation of goods - Section 130 of the Central/Gujarat Goods and Services Tax Act, 2017 - It is the case of the writ-applicant that the goods and the conveyance came to be detained and seized by the GST Authorities on the premise that the goods were being transported in contravention of the Act and Rules - HELD THAT:- As the matter is at the stage of GST-MOV-10, we would not like to enter into the merits of the matter. The first concern for the writ-applicant should be to get the goods released - Since the matter is at the stage of GST-MOV-10, the application preferred by the writ-applicant [Annexure-I, Page No.44 of the paper-book] shall be treated as one in terms of Section 67(6) of the Act.
This writ-application with a direction to the State Tax Officer, Morbi Squad, Enforcement, Division-9, Bhavnagar to immediately look into the application, preferred by the writ-applicant and pass appropriate order, in accordance with law - Let this exercise be undertaken and complied within a period of one week from the date of receipt of the writ of this order.
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2020 (2) TMI 1298
Confiscation of goods or conveyance - levy of penalty under Section 130 of the GST Act - Principles of natural justice - HELD THAT:- This is a case in which the final order in Form GST-MOV-11 has been passed. In such circumstances, we relegate the writ-applicant to prefer an appeal, against such order, under Section 107 of the Act - Application disposed off.
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2020 (2) TMI 1297
Grant of regular bail - bogus firms - intent to evade GST - fake invoices issued for input tax credit (ITC) - bogus transaction of sale of yarn - allegation is that Petitioners make bogus firms and by transacting with bigger firms, they are getting huge amounts of money deposited in the account numbers of the said fake bogus firms so as to save GST and are thus causing huge loss to the State Exchequer on account of loss of revenue - HELD THAT:- Rajesh Mittal has played an pivotal role in the entire scam for the purpose of incorporating 18 different firms wherein in a majority of the firms, his e-mail ID or phone number had been used. During the course of investigation, the police has been able to collect evidence to the effect that bank transactions of withdrawal of ₹ 1,21,17,230/- was made in the account of M/s Ansh Hospitality between 23.1.2019 and 30.6.2019 and an amount of ₹ 1,21,21,881/- was deposited and for which the learned counsel representing Manish, owner of the said firm, could not furnish any justification as to on what count the said huge payments had been received and as to what articles had been supplied by him against the said payment. Similarly, during investigation, it was found that bank transactions of huge amount had been effected in the account of M/s Shree Bala Ji Wooltax.
The learned counsel for the petitioner-Inder Partap Singh, owner of M/s Shree Bala Ji Wooltax, could not furnish any justifiable explanation as to on what count the said payment has been received, as the said firm was not found to be actually into business.
The complicity of the kingpin Rajesh Mittal and also of Manish, owner of M/s Ansh Hospitality and of petitioner Inder Partap Singh, owner of M/s Shree Bala Ji Wooltax, is clearly evident - Keeping in view the enormity of the scam and the colossal loss caused to the State exchequer, which has lost GST, this Court does not find any ground for grant of bail.
Bail cannot be granted - petition dismissed - decided against petitioner.
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2020 (2) TMI 1296
Mode of Petitioner’s application for advance ruling - Mr. Bansal further submits that the issue with regard to filing of the online application for advance ruling has been resolved qua OIDAR services and it is possible for anyone to move the application online. Mr. Bansal submits that functionality of advance ruling is now available on GST portal wherein the normal tax payer after choosing both CGST and SGST Acts can pay the specified fee under the respective heads and similarly an OIDAR tax payer registered under IGST Act will pay the specified fee of ₹ 5,000/- under IGST as fee for application for advance ruling.
HELD THAT:- List on 16.03.2020.
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2020 (2) TMI 1295
Claim of exemption - milk chilling and packing services - support services to agriculture - In the circular CBIC says the activity is not eligible for exemption - whether exempt by virtue of serial No.24 of the table to Notification No.11/2017 – Central Tax (Rate) dated 28.6.2017? - refund of amount recovered and collected from the petitioners through their contractors as GST on milk chilling and packing services.
It is the case of the petitioners that the Central Government has granted exemption to milk chilling, storage and packing service by virtue of serial No.24 of Notification No.11/2017 dated 28.6.2017, but this exemption is now denied to the petitioners by virtue of the Circular F. No.354/292/2018- TRU dated 9.8.2018 issued by the TRU.
HELD THAT:- It is not in dispute that milk is an agricultural produce, it being a produce out of rearing of life forms of animals and for food. The present case relates to raw and unprocessed milk. What is brought to the centres is raw milk in which no further processing has been done and therefore, such milk is an agricultural produce - The chilling and packing services provided by the contractors to the petitioners are in respect of raw milk. As farmers involved in rearing animals for the purpose of milk cannot directly connect to each of the consumers of the supply of milk, such farmers join hands to form a village co-operative society and supply milk to the member unions.
Vide Notification No.11/2017 dated 28th June, 2017, services falling under Heading 9986 were exempted from payment of tax under Central Goods and Services Tax Act, 2017, State Goods and Services Tax Acts, 2017, Union Territory Goods and Services Tax Act, 2017 and the Integrated Goods and Services Tax Act, 2017. The services falling under clause (i) of the Heading 9986 are “support services to agriculture, forestry, fishing, animal husbandry” - the above notification was brought into force from 1.7.2017.
On a perusal of paragraph 3 of the impugned circular, it is evident that the same is based on sub-clause (c) of clause (i) of the Explanation to clause (i) under Heading 9986, inasmuch as, according to the respondents the process of chilling and packing of milk is not usually done by the cultivator or producer and are not carried out at an agricultural farm - In the present case, the agricultural produce in respect of which support services are availed is raw unprocessed milk. It cannot be disputed that for storage of milk it would have to be chilled. Milk cannot be stored without chilling as otherwise it would get spoiled. Therefore, storage of milk would include chilling of milk. Chilling of milk does not alter any of its essential characteristics and it still remains raw milk, and it is this raw milk which is thereafter packed. Therefore, chilling and storage of raw milk and packing it would clearly fall under sub-clause (e) of clause (i) of the Explanation. Consequently, if the raw milk is only stored and packed, the support services would fall under Heading 9986 of the Table to Notification No.11/2017 – Central Tax (Rate).
In the impugned circular, it is the case of the respondents that chilled and packed milk for retail sale is not covered by the definition of agricultural produce. While saying so, what is lost sight of is that support services are not provided to chilled and packed milk, but support services of storage and packing are provide to raw milk which is an agricultural produce. Therefore, the very basic premise on which the respondents have proceeded is fallacious and based on a factually incorrect premise - Another ground stated is that such processes are not carried out at an agricultural farm. This ground is based on a misconception of the nature of services being provided, inasmuch as, it is sub-clause (c) of clause (i) of the Explanation which requires processes to be carried out at an agricultural farm; whereas, sub-clause (e) does not contain any such prescription.
In the impugned circular, it is also stated that chilling and packing is not exempt from GST inasmuch as services by way of job work in relation to all food and food products falling under Chapters 1 to 22 attract levy of GST @ 5% and therefore, the activity of chilling and packaging of milk provided by way of job work attracts levy of GST @ 5%. In this regard, this court is of the view that the levy of 5% GST on job work on food and food products falling under Chapters 1 to 22 would be attracted if the services provided are not “support services” as contemplated under clause (i) of Heading 9986 at Serial No.24 of the Table to Notification No.11/2017 dated 28.6.2017.
The court is of the view that the interpretation given by the respondents to the activities of chilling and packing of milk as contained in the impugned letter/circular dated 9.8.2018 is not in consonance with the provisions contained in Serial No.24 of the Table to Notification No.11/2017 dated 28.6.2017 and, therefore, the impugned letter/circular cannot be sustained - The impugned letter/circular F No.354/292/2018-TRU dated 9.8.2018 (Annexure-F to the petition) issued by the Government of India, through the Tax Research Unit, New Delhi, is hereby quashed - It is hereby held that milk chilling and packing service provided by the contractors to the petitioners are exempted by virtue of Serial No.24 of the table to Notification No.11/2017 – Central Tax (Rate) dated 28.6.2017 (Annexure-D to the petition).
Petition allowed.
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2020 (2) TMI 1294
Grant of anticipatory bail - issuing fake invoices for the purpose of having input credit - Validity of summons issued - Statements given under coercion or not - bail sought on the ground that official of the Superintendent, Anti-evaion, Central Tax, Delhi, had gone at the premises of wife of the applicant to serve the summons u/s. 70 of CGST Act, 2017 whereas in fact, the applicant is living separately and had gone for some personal work at that time - HELD THAT:- The statement given by the applicant to the department u/s 70 of GST Act and further evidence in the form of statement of accountant Vibhav Rai and the books of account, which have also been admitted by the applicant, are reflecting the existence of a deep rooted systematic conspiracy to cheat the exchequer.
The ground raised on behalf of the applicant is that he was coerced to give the statement. However, it is to be seen that the applicant was given time to join investigation. He was given protection by the court and therefore, without commenting on the merits of the statement or contentions of the applicant that it was taken under coercion, I find that at this stage, it is highly improbable that a person who had court protection could be threatened orally and be made to give such inculpatory statement.
This is not a fit case for grant of anticipatory bail - bail application dismissed.
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2020 (2) TMI 1242
Refund of GST paid under RCM on ocean freight - Constitutional validity of Entry No.10 of Notification No.10/2017-IGST(Rate) dated 28.6.2017 - vires of Section 5(3) of the IGST Act as well as Article 14 of the Constitution of India - HELD THAT:- This Court vide judgement and order passed in the case of Mohit Minerals Pvt Ltd vs. Union of India [2020 (1) TMI 974 - GUJARAT HIGH COURT] declared the Entry No.10 of the Notification No.10/2017-Integrated Tax (Rate) dated 28th June 2017 as ultra vires Section 5(3) of the Integrated Goods and Services Tax Act, 2017 as well as Article 14 of the Constitution of India.
Since the Notification has been struck down as ultra vires, as a consequence of the same, the writ applicant seeks refund of the amount paid towards the IGST. However, for this purpose, the writ applicant will have to prefer an appropriate application addressed to the competent authority.
Application disposed off.
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2020 (2) TMI 1241
Jurisdiction - Central GST authority or State GST authority - Validity of investigation initiated by the respondents and the summons issued in connection with the said investigation - primary challenge to the investigation and the summons issued was a specific bar under the GST Act, 2017 - Input Tax Credit on the GST paid on the goods and service purchased - primary contention of the counsel for the petitioner was that once when a show cause notice proceeding initiated by the respondents dated 14.11.2019 is pending before the concerned authorities under the CGSGST, the respondents could not have issued or initiated another investigation or proceeding in-respect of the same subject matter, which otherwise is not permissible under the provisions of Section 6(2)(1)(b).
HELD THAT:- This Court does not find any substance in the arguments of the petitioner, when they say that the investigation and the proceedings now initiated is one, which hit by Section 6(2)(1)(b) of the CGST Act of 2017. What has also to be appreciated is the fact that there is a clear distinction between a proceeding drawn for the demand of tax evaded by the petitioner-establishment and the investigation be conducted by the Department of the DG, GST Intelligence Wings in respect of an offence committed by an establishment by way of using bogus and fake invoices and illegally availing ITCs, which the petitioner-establishment otherwise was ineligible.
Petition dismissed.
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2020 (2) TMI 1240
Constitutional validity of Rule 117 of the CGST Rules - time limitation - carry forward of CENVAT credit - migration to GST regime - HELD THAT:- This Court has not declared the said Rule 117 of the CGST Rules, 2017 neither this Court has ordered the respondents to carry forward CENVAT credit beyond the time limit, but in the case on hand, the respondents herein had tried to upload form GST TRAN-1, but it could not be filed on account of technical glitches in terms of poor network connectivity and other technical difficulties at common portal. Under the circumstances, this Court has gone into the question that in such circumstances what would be the remedy if a person who tries to follow Rule 117 of the CGST Rules, 2017 but, without there being any fault on his side he could not upload the form due to technical glitches.
This Court has followed the judgement in the case of FILCO TRADE CENTRE PVT. LTD. VERSUS UNION OF INDIA [2018 (9) TMI 885 - GUJARAT HIGH COURT], wherein, after relying on number of judgements of the Apex Court, the coordinate Bench of this Court had followed the consistent findings of the Apex Court and held that the right accrued to the assessee on the date when the paid tax on the raw materials or the inputs and that right would continue by way of CENVAT credit. The CENVAT credit is therefore indefeasible.
This Court had directed the applicants herein – original respondents to permit the respondents herein – original petitioners to allow filing declaration form in GST TRAN-1 and GST TRAN-2, so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the GST Act.
When the co-ordinate Bench had already declared clause (iv) of sub-section (3) of Section 140 as unconstitutional, we do not have any hesitation to declare Rule 117 of the CGST Rules, 2017 for the purpose of claiming transitional credit as procedural in nature and should not be construed as mandatory provision.
The present applications deserve to be dismissed and are hereby dismissed.
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2020 (2) TMI 1239
Permission to re-export the seized goods - demand of furnishing Bank Guarantee of 25% - Petitioner submitted that there is no provision for levy of IGST either on the imported goods or the exported goods under the provision of Integrated Goods and Services Tax Act, 2017. He therefore submitted that the insistence on the part of the respondent no.3 to furnish the bank guarantee of 25% on the amount of IGST is without any basis - HELD THAT:- As this Court has directed the respondent no.2 to permit the petitioner to re-export the goods on furnishing the 25% of the customs duty leviable on redetermined value of goods, then the respondent no.2 is not entitled to ask for bank guarantee on the amount of IGST on redetermined value of goods.
The impugned communication dated 07th September, 2018 is hereby quashed and set aside. It is declared that the petitioner is not liable to furnish the bank guarantee of ₹ 15,20,183/ for releasing the goods for re-export, as asked by the respondent no.3 - Petition allowed.
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2020 (2) TMI 1238
Principles of natural justice - order passed beyond jurisdiction in terms of Section 39, 46, 47 and 50 of the Bihar Goods and Service Tax Act, 2017 - notice in form GSTR-3A not issued - liability of interest under Section 50 of the Act - HELD THAT:- It is found that the order to be not assigning any reasons whatsoever - Also, prior to passing of the impugned order, no opportunity of hearing was ever afforded to the writ-petitioner. As such, there was gross violation of principles of natural justice in passing of the impugned order, which is hereby quashed with the certain directions - Petitioner shall appear before the appropriate authority on 28.01.2020, whereafter the proceedings shall commence afresh, affording opportunity of proper hearing to the petitioner, also enabe to place on record additional material, if so required/desired and only thereafter the officer shall pass a fresh order assigning reason, in accordance with law.
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2020 (2) TMI 1237
Profiteering - supply of construction services related to the purchase of Flat - benefit of Input Tax Credit (ITC) by way of commensurate reduction in the price of the apartment purchased by him, not passed on - contravention of section 171 of CGST Act - HELD THAT:- It is clear from the plain reading of Section 171(1) mentioned above that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP’s Report that there has been no reduction in the rate of tax in the post GST period.
The only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. On this issue, the DGAP in his Report, has stated that ITC as a percentage of the turnover which was available to the Respondent during the pre-GST period (April 2016 to June-2017) was 0.94% and during the post-GST period (July-2017 to March-2019), it was 0.39%. On this basis, the DGAP has reported that the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it does not qualify to be a case of profiteering - there are no reason to differ from the Report of DGAP and we therefore agree with his findings that the the provisions of Section 171 of the CGST Act 2017 have not been contravened in this case.
The instant case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. Therefore, the allegation that the Respondent has not passed on the benefit of ITC in this case is not found sustainable. Accordingly, the application filed by Applicant No. 1, requesting action against the Respondent for alleged violation of the provisions of Section 171 of the CGST Act, is dismissed as not maintainable.
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2020 (2) TMI 1206
Failure to file Form GST TRAN-1 - carry forward of Input Tax Credit - technical glitches - whether the respondents can be directed to either open the portal to enable the petitioner to now file FORM GST TRAN-1 electronically or to permit the petitioner to submit manually, the typed Form GST TRAN-1 for acceptance by the respondents?
HELD THAT:- Issue notice.
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2020 (2) TMI 1188
Anti-profiteering measure - Constitutional validity of Section 171 of the Central Goods and Services Tax Act 2017 read with Rule 126 of the Central Goods and Services Tax Rules 2017 - time limitation - HELD THAT:- It is considered appropriate and proper that, in the interests of a uniform and consistent view on the law, all the writ petitions should be transferred to the High Court of Delhi, where earlier writ petitions are already pending.
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2020 (2) TMI 1187
Release of goods alongwith the vehicle - Section 129(1)(a) of the GST Act - an Appeal under Section 107 (1) of the Act was filed - HELD THAT:- When, however, the Appellate Court instead of adjudicating as to whether the amount was payable under Section 129 (1) (a) or under Section 129 (1) (b) adjudicated on different aspects as well on 28.1.2020, the petitioner has filed the instant petition under the Article 226 of the Constitution of India - Learned counsel for the petitioner further submitted that under Section 168 of the U.P. GST Act, 2017, a certain Government Order had also been issued on 1.7.2017 (annexed as annexure no. 6 to the writ petition) which states that when the invoice is there it would be deemed that the person from whose possession the invoice is found would the owner and when the invoice came from the petitioner, it shall be deemed to be the owner.
Matter requires consideration - However, if the petitioner deposits the amount as is payable under Section 129(1)(a) of the GST Act, the goods and the vehicle shall be released.
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2020 (2) TMI 1186
Release of detained goods alongwith vehicle - levy of penalty - principles of natural justice - HELD THAT:- While issuing notice, this Court directed that the vehicle as well as the goods be released, upon payment of the tax, in terms of the impugned notice - The writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount. The proceedings, as on date, are at the stage of show cause notice, under Section 130 of the Central Goods and Services Act, 2017. The proceedings shall go ahead in accordance with law.
It shall be open for the writ applicant to point out the recent pronouncement of this Court in the case of SYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [2019 (12) TMI 1213 - GUJARAT HIGH COURT].
It is now for the applicant to make good his case that the show cause notice, issued in GST-MOV-10, deserves to be discharged - Application disposed off.
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