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GST - Case Laws
Showing 321 to 340 of 2178 Records
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2023 (11) TMI 772
Validity of assessment u/s 74 - Ascertaining Tax liability - Violation of principles of natural justice - failure to consider the reply filed by the petitioner - HELD THAT:- In the present case, due to the failure on the part of the respondent/Assessing Officer to consider the reply filed by the petitioner and deal with the same while passing the impugned order, by which, the petitioner will deprive of their right to defend before the Assessing Authority if the matter is remanded to the Appellate Authority.
In the present case, the respondent/Assessing Officer, admittedly, has failed to consider the reply/objections made by the petitioner pursuant to the show cause notice and passed a non-speaking order. The learned counsel also brought to the notice of this Court certain paragraphs mentioned in the show cause notice were re-produced in the impugned order. Therefore, failure on the part of the respondent/Assessing Officer to address the reply/objections of the petitioner/assessee by a speaking order, would vitiate the impugned proceedings.
Since the reply/objections made by the petitioner pursuant to the show cause notice remained undecided, this Court feels that the petitioner is entitled to have a considered opinion of the Assessing Officer after taking into consideration the reply filed by the petitioner. Thus, this Court is inclined to set-aside the impugned order and remit the matter back for re-consideration. Accordingly, the Assessing Officer is directed to pass a detailed order after taking into consideration the reply filed by the petitioner.
The matter is remitted back to the respondent for reconsideration of its order, taking into consideration the reply filed by the petitioner dated 17.1.2022. Needless to say that principles of natural justice shall be followed - Petition allowed by way of remand.
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2023 (11) TMI 771
Rejection of refund claim - Principles of natural justice - scope of impugned order and reply to SCN - grievance of the petitioner is that none of the contentions as urged by the petitioner in its reply filed to the show cause notice are addressed in passing the impugned order - HELD THAT:- Attention is drawn to paragraph 5 of the impugned order, contents of which according to Mr. Raichandani, can hardly be called to be any reasons to reject, any of the contentions as urged by the petitioner, as also without considering the documents which were placed on record of the Assistant Commissioner.
Learned counsel for the revenue, considering the contentions as urged on behalf of the petitioner, fairly accepting that the impugned order fails to consider materials, makes a statement that the respondents be permitted to withdraw the impugned order with liberty to issue a fresh show cause notice, on the refund application, to be adjudicated in accordance with law, after considering the reply of the petitioner as also after granting an opportunity of hearing to the petitioner.
The impugned order dated 03 February, 2023 stands withdrawn as per statement as made on behalf of the respondents and accordingly stands set aside as withdrawn - Petition disposed off.
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2023 (11) TMI 770
Refund of IGST - Zero Rates Supplies - Amendment to shipping bills - HELD THAT:- It is undisputed that an application for amendment of shipping bills has been made to the respondent on 30.01.2023 which is placed on record by the petitioner through an additional affidavit affirmed on 07.02.2023.
The respondents are directed to decide the application so made within a period of six weeks from today - Petition disposed off.
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2023 (11) TMI 769
Return or transfer of goods - HELD THAT:- It is agreed between the parties that the petitioner shall appear before the respondent- GST Authority at Surat for return of the goods as stated in Schedule-I annexed to the affidavit. Learned AGP Mr. Trivedi submitted that a panchana shall be drawn for handing over the goods as stated in Annexure-I to the affidavit and the same shall be placed on record before the Court. It is agreed between the parties that the petitioner shall appear before the respondent authority on 16.09.2023.
Stand over to 20th September, 2023.
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2023 (11) TMI 768
Condonation of delay in filing appeal before the first appellate authority - delay on medical grounds - reasonable cause - Violation of principles of natural justice - validity of assessment order - HELD THAT:- On perusal of the record, it is observed that the adjudicating authority passed impugned order on 13.04.2022. The order was served on Mr. V. Dhanesh on the very same day. The petitioner ought to have filed the Appeal by 12.07.2022, but the petitioner filed the appeal on 01.11.2022, with a delay of 112 days.
As per clause (4) of Section 107 of the Act, the period of one month of delay in filing the appeal, can be condoned, for any sufficient reasons. After deducting the period of one month, which is a condonable period as per the Act, still the delay of 81 days in preferring the appeal is visible from the record. Respondent No. 2 passed order impugned, rejecting the appeal at the admission stage, on the point that the appeal has been filed with a delay beyond the condonable period of limitation.
The medical certificate of Mr. V. Dhanesh is placed on record. No contrary material is filed, refuting the contents of the medical certificate. Indeed, the right of appeal of a party is creature of statute and since, it is a statutory remedy. The right of appeal under Section 107 of the Act is also subject to certain conditions. It is not in dispute that, the 2nd respondent has no authority to admit the appeal, when it is filed beyond the condonable period of one month of limitation as per the statute. The petitioner herein expressed her difficulty in filing the appeal within the time, since she has no knowledge about service of adjudication order on the accountant viz., Mr. Dhanesh.
This writ petition is allowed and the impugned order dated 07.01.2023 passed by the 2nd respondent rejecting the appeal filed by the petitioner on the ground that the same was filed beyond the condonable period is set aside and consequently, the delay of 112 days in filing the appeal is condoned subject to the petitioner depositing 20% of the disputed tax in addition to the amount if any already deposited at the time of filing the appeal and paying costs of ₹10,000/- with the High Court Legal Services Committee within six weeks from the date of receipt of copy of the order, upon which, the 2nd respondent shall admit the appeal filed by the petitioner and after affording an opportunity of hearing to both parties, dispose of the appeal in accordance with the governing law and rules expeditiously.
Petition allowed.
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2023 (11) TMI 767
Seeking release of seized goods along with truck - HELD THAT:- Recently, this Court passed an order in Special Civil Application No. 5900 of 2023, Dated: 28.04.2023 [2023 (5) TMI 1144 - GUJARAT HIGH COURT], whereby, the rule is issued and interim relief is also granted - In view of the above, RULE, returnable on 2ND AUGUST, 2023.
By way of interim relief, it is directed that the goods of the petitioner as well as the conveyance / vehicle, bearing registration No. GJ-02-VV-7845, shall be RELEASED, subject to the petitioner complying with the conditions imposed - application allowed.
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2023 (11) TMI 766
Non-filing of the certified copy of the order within seven days of online submission of appeal - violation of principles of natural justice - HELD THAT:- It is undisputed fact that that the appeal was filed on-line within the statutory period along with the copy of the order. So, if an appeal has got merit it should not be dismissed on such hyper-technical ground of non-filing of certified copy within the statutory period when the appeal itself was filed within the time along with copy of the order on-line.
Considering the facts and circumstances of the case, submission of the parties and in the interest of justice the impugned order dated 22nd March, 2023 is set aside and the appeal is remanded back to the Appellate Authority concerned to consider and dispose of the appeal on merits and in accordance with law subject to fulfilment of all other formalities, within a period of three months from the date of communication of this order after observing the principles of natural justice.
Petition allowed by way of remand.
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2023 (11) TMI 765
Classification of goods - HSN Code - rate of tax - Urban Roots - Bio kavach - Immunity Booster, Avinja 7 - to be classified under HSN Code 30039011 or HSN Code 31010092? - HELD THAT:- The description of the product by the applicant does not indicate any cure therefore will does not fall under chapter 30 and hence will not attract a lower rate of tax - Further immunity boosters are not specified either in schedule I or schedule II as seen from the above table hence this is a commodity which is not specified in Schedule I, II, IV, V or VI of the Notification No. 01/2017 dt. 28.06.2017 and therefore would fall in residuary entry at Serial No. 453 of Schedule III and attract the tax at the rate of 9% CGST & 9% SGST each.
The questions raised by the applicant are clarified as below:
1. HSN Code of Urban Roots and its Rate of tax - Serial No 453 of Schedule III of Notification No. 1/2017. Rate of Tax 9% CGST & 9% SGST.
2. HSN Code of -Bio kavach and its Rate of tax - Serial No 453 of Schedule III of Notification No. 1/2017. Rate of Tax 9% CGST & 9% SGST.
3. HSN Code of Immunity Booster - Avinja 7 and its Rate of tax - Serial No 453 of Schedule III of Notification No. 1/2017. Rate of Tax 9% CGST & 9% SGST.
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2023 (11) TMI 715
Levy of penalty - goods being transported without e-way bill under U.P. G.S.T. Act, 2017 read with Rules framed thereunder - HELD THAT:- The infraction occurred during the period 01.02.2018 to 31.03.2018 - Learned Division Bench of this Court in M/S VARUN BEVERAGES LIMITED VERSUS STATE OF U.P. AND 2 OTHERS [2021 (10) TMI 429 - ALLAHABAD HIGH COURT] held so far as the matter is squarely covered by a decision of Division Bench of this Court in M/S GODREJ AND BOYCE MANUFACTURING CO. LTD., L.G. ELECTRONICS INDIA PVT. LTD., BHARTI AIRTEL LIMITED, M/S GUALA CLOSURES (INDIA) PVT. LTD., M/S. RAS POLYTEX PVT. LIMITED, RIMJHIM ISPAT LIMITED, RIMJHIM ISPAT LIMITED, M/S. GAURANG PRODUCTS PVT. LTD., M/S. ADITYA BIRLA FASHION AND RETAIL LTD., M/S. NAVYUG AIRCONDITIONING AND M/S. PROACTIVE PLAST PVT. LTD. VERSUS STATE OF U.P. AND 02 OTHERS AND STATE OF U.P. AND 3 OTHERS [2018 (9) TMI 1261 - ALLAHABAD HIGH COURT], with which we are in agreement, the present writ petition is allowed.
The petitioner is entitled to the benefit of the judgment rendered in M/s Varun Beverages - the impugned order dated 25.04.2019 is quashed - petition allowed.
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2023 (11) TMI 714
Seeking provisional release of goods seized - search and seizure operations that were conducted in the premises of the petitioner - It is the respondents’ case that the petitioner had invested the sale proceeds of such clandestine trade in purchasing silver - HELD THAT:- The silver seized by the respondents was released to the petitioner at their office on 09.11.2023. The office of the respondent is located at the fourth and fifth floor of the building at Plot No. 6, Arrow Corporate Tower, Kaushambi, Ghaziabad. However, after releasing the said silver, the respondents had once again, seized the same from the petitioner at the ground floor of the said premises. Thus, in effect, the petitioner was permitted to carry the silver out of the office but a seizure was once again effected on the ground floor of the said premises. Clearly, the respondent had no ground to believe that silver was being secreted at the said premises.
The fact that the petitioner was in possession of the silver, is not disputed, this is the subject matter of the proceedings in the present petition - the respondents have carried out the charade of releasing the silver from their office and then attempting to repossess the same at the ground floor.
Thus, subject to the petitioner depositing the sum of ₹16,00,000/- with the Registry of this Court, within a period of one week from today, the respondents shall release and deliver the silver in question, at the residence of the petitioner on 20.11.2023 at 10:30 a.m. - List on the date already fixed, that is, 30.11.2023.
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2023 (11) TMI 713
Cancellation of GST registration of petitioner - registration has been obtained by means of fraud, willful mis-statement and suppression of facts and no details were furnished to the petitioner - principles of natural justice - HELD THAT:- The Court had held that by issuing a cryptic show cause notice, the authorities had violated the principles of natural justice. From the impugned order as well as the show cause notice, the reasons for cancellation are not decipherable therefrom.
The show cause notice and the impugned order are quashed and set aside. The petition is allowed solely on the ground of violation of principles of natural justice. The show cause notice as well as the order cancelling the registration are quashed and set aside with a liberty reserved to the respondent to issue a fresh notice with particulars of reasons incorporated with details, and thereafter, to provide reasonable opportunity of hearing to the writ petitioner and to pass appropriate speaking order on merits.
Petiton allowed.
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2023 (11) TMI 712
Cancellation of GST registration of petitioner - existence of statutory alternative remedy - HELD THAT:- From a bare reading of the notice, reply furnished thereto and the impugned order it transpires, in the first place a wholly non-speaking show- cause notice was issued to the petitioner. Besides making reference to the statutory requirement/ obligation on a registered person to issue a tax invoice only against actual business transaction, no fact allegation was made in that notice of any violation/ infringement of that statutory requirement, committed by the petitioner. Neither date or detail of the tax invoice nor goods involved nor their value etc. nor the purchaser were disclosed. Even the period during which the law may have been allegedly infringed by the petitioner, was not specified in the show-cause notice. At the same time, the said communication suspended the registration of the petitioner.
Though the petitioner's reply dated 28.3.2023 may also be described as vague at the same time it is difficult to accept that an adverse conclusion may have been drawn against the petitioner solely on that basis. Unless the show-cause notice had made any fact allegation against the petitioner, the vagueness of the reply may remain inconsequential.
The order impugned dated 9.8.2023 assigns no reason whatsoever to cancel the petitioner's registration - Relegating the petitioner to the forum of alternative remedy in face of undisputed facts noted above may be of no real use or purpose. The writ court regularly relegates petitioners specifically in tax matters, to the forum of the statutory remedy of appeal where minimum compliances of law have been made - the objection of the maintainability of the present writ petition is over ruled.
The petition is disposed off.
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2023 (11) TMI 711
Validity of impugned notice and order - notice was issued against the dead person - ex-parte impugned order - Legal representative - HELD THAT:- The Assistant Commissioner, Central Goods & Service Tax, Division-I, Noida in the impugned order has taken note of the factum of the death of the husband of the petitioner. The impugned order also states that opportunity of personal hearing was accorded and dates were fixed but neither any authorized representative appeared nor any communication was received from the party even though the communication was made by the department on registered address and registered e-mail - the department was required to serve notice upon the petitioner being the legal representative of the deceased before proceeding in the matter. The impugned order nowhere records that notice issued by the department was served upon the petitioner being the legal representative of the deceased assessee.
The impugned order dated 27.02.2023 is liable to be set aside and is, accordingly, set aside. The matter is remitted back to the Assistant Commissioner, Central Goods & Service Tax, Division-I, Noida, for decision afresh after affording personnel hearing to the petitioner or to her representative considering the age of the petitioner, which is stated to be 79 years. The Assistant Commissioner, Central Goods & Service Tax, Division-I, Noida shall not be required to issue fresh notice to the petitioner - Petition disposed off.
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2023 (11) TMI 710
Validity of Show Cause Notice (SCN) - Clandestine supplies of Pan Masala without payment of GST and Cess - Evasion of duty - it is alleged that notice issued with oblique motive, based on incorrect facts, contains numerous inaccuracies - HELD THAT:- Having perused the records particularly to the contents of the Show Cause Notice impugned, prima-facie, it is found that the allegations leveled against the petitioners have substance.
It is not required to venture into the correctness or otherwise of the allegations set out in the impugned Show Cause Notice as the same would involve fact appreciation and with respect to the same the petitioners have adequate statutory remedies available by filing appropriate objections to the Show Cause Notice and lead defence evidence controverting the allegations. Suffice is to note that there is no inherent lack of jurisdiction of the Competent Authority to issue the impugned Show Cause Notice. The argument raised by learned counsel for the petitioner that the Show Cause Notice has been issued with a premeditated mind does not merit consideration at this stage of the proceedings.
Once allegations of infraction of law arise the adjudication proceedings may not be interjected in exercise of extra ordinary jurisdiction conferred under Article 226 of the Constitution of India particularly in view of the fact that reference made to other facts narrated in the Show Cause Notice would also remain to be examined in the adjudication proceedings.
Writ petition dismissed.
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2023 (11) TMI 709
Validity of Show Cause Notice (SCN) - Payment of tax under the compounding scheme under Section 8(f)(i) of the KVAT Act - Wrongful availment of TRAN Credit - HELD THAT:- TRAN credit is transitional input tax credit made use of by a dealer under the KVAT Act regime under Section 140(6) of the KGST Act 2017, it is specified that the dealer who was either paying tax at a fixed rate or paying a fixed amount in lieu of the tax payable under the existing law shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day. The petitioner has claimed credit of this TRAN credit in its returns for the period from 01.07.2016 to 30.06.2017.
The Judgment in the case of M/S. USHA MARTIN LIMITED, VERSUS ADDITIONAL COMMISSIONER, CENTRAL GST AND EXCISE, EXCISE, JAMSHEDPUR, JOINT COMMISSIONER, CENTRAL GST AND EXCISE, JAMSHEDPUR, COMMISSIONER OF CGST & CX, JAMSHEDPUR, UNION OF INDIA [2022 (11) TMI 1266 - JHARKHAND HIGH COURT] wherein it has been held that initiation of proceedings under Section 73 (1) of the CGST Act, 2017 for contravention of Central Excise Act and Finance Act, read with Central Credit Rules by filing TRAN 1 in terms of Section 140 of the CGST Act for transition of CENVET Credit is without jurisdiction has no application to the facts of the present case. In the present case the petitioner has claimed the TRAN in respect of the purchases made by him during 01.07.2016 to 30.06.2017 for which he has claimed credit in GST TRAN. On examination, the authority has found that the claim of the petitioner is not borne out from the records.
Challenge to the show cause notice in writ Court is maintainable only in certain situations that is where the notice is wholly without jurisdiction or there is violation of principles of natural justice - it is not found that the show cause notice issued is without jurisdiction or the authority is not vested with the power to investigate the matter and issuance of show cause notice for alleged incorrect availing of input tax credit.
There are no substance in the writ petition and it is hereby dismissed.
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2023 (11) TMI 666
Power of Tax Research Unit (TRU) to issue clarification regarding Classification of Goods - Validity of Circular No. 80/54/2018-GST dated 31.12.2018 issued by the Tax Research Unit of the Respondent No. 1 - polypropylene woven and non-woven bags including those laminated with Biaxially Oriented Polypropylene (BOPP) - liable to be classified as falling under Chapter 39 or not.
HELD THAT:- Ld. counsels for the Revenue could not draw our attention to any provision of the CGST Act, in terms of which the TRU could be said to have been clothed with the authority or jurisdiction to render a clarification with respect to classification of goods and articles. That power clearly appears to stand conferred upon the Board exclusively. We are thus of the considered opinion that no authority vested in the TRU to issue the clarification impugned before us.
In the absence of a conferral of any power upon the TRU, or it being recognized as being statutorily enabled to issue any clarification or directive under Section 168 of the CGST Act, the circular is liable to be quashed and set aside on this ground alone.
All that needs to be observed in this regard is that the conflict of opinion that may exist would have to be resolved by parties taking appropriate steps as contemplated under the CGST Act.
It is noted that the impugned circular while purporting to convey a position with respect to the classification of non-woven polypropylene bags has rested its conclusions solely on the basis of the provisions contained in Chapter 39. It has neither alluded to Section XI of the First Schedule to the 1975 Act nor has it referred to Chapter 56 thereof. The contention of the petitioners that non-woven polypropylene is an article which would fall within Tariff Heading 5603 was neither questioned nor contested before us by the respondents. In any case, a reading of the impugned circular would establish that it fails to examine the issue on the anvil of the distinction which the 1975 Act appears to construct when it places plastics under Chapter 39 and textiles and articles thereof separately in Section XI, and more particularly, as was contended by the petitioners in Chapters 56 and 63 of the said enactment. The impugned circular also fails to advert to the Notes placed in Chapter 39, and which in unambiguous terms, exclude textiles from the ambit thereof.
The failure of parties to address the question comprehensively constrains to desist from rendering a definitive opinion in that respect bearing in mind the industry wide ramifications that may ensue. Courts should avoid expressing an opinion on questions of classification unless they are directly raised and adequate and cogent material placed on the record. Bearing in mind the impact that such a ruling may have, findings in that respect, in any case, should not be founded on material which is tenuous and inadequate.
Further, since the writ petition itself stood restricted to the validity of the circular, it would be imprudent to hand down a verdict imbued with attributes of finality - the issue of classification should be left open for the consideration of the competent authority in appropriate proceedings.
The impugned circular dated 31 December 2018 is hereby quashed - petition allowed.
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2023 (11) TMI 665
Refund of amount as claimed by the petitioner in terms of the provision of Section 142 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- In the event, the petitioner’s application is rejected, the concerned officer shall pass a speaking order setting out the reasons for the same after affording the petitioner an opportunity to be heard. The respondent is bound down to the said statement.
Petition disposed off.
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2023 (11) TMI 664
Disallowance of ITC - Validity of order passed u/s 74 - allegation of creation of bogus invoices - circular trading without movement of goods with an intention to avail irregular ITC - HELD THAT:- It is not in dispute that in the present case, only the input tax credit (ITC) alone was disallowed and the same will not have any impact on the petitioners inasmuch disallowing the input tax credit will affect the beneficiary who availed it and in the present case, M/s. SKMPL in liquidation is the beneficiary and not the petitioners. As against the petitioners, penalty and interest were fastened based on the search conducted and the documents seized at the premises of the petitioners, where it was found that the petitioners had indulged in creation of bogus invoices and they had not at all conducted any business activities and it was concluded that the cotton yarn purchased and sold by the petitioners have not been received in the premises - This Court does not find any violation of principles of natural justice and deprival of any constitutional rights. In such view of the matter, this Court is not inclined to entertain the Writ Petitions.
Considering the fact that as against the impugned orders, there is an efficacious appeal remedy available to the petitioners, without adverting to the grounds raised by the petitioners in respect of the impugned orders, this Court grant liberty to the petitioners to prefer appeals before the appropriate authority within a period of 30 days from the date of receipt of a copy of this order, without insisting upon the aspect of limitation - Petition dismissed.
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2023 (11) TMI 663
Refusal on the part of the respondents to refund the excess input tax under the GST Act - delay in filing the application for refund - amendment made to Section 54(1) to the GST Act - HELD THAT:- Insofar as the question of delay is concerned, the period between 15/03/2020 to 28/02/2022 has been excluded by the Hon’ble Apex Court in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (5) TMI 564 - SC ORDER] and considering the deletion of this period, the application which has been filed on 13/5/2020 for the month of December, 2017, would be within time.
Applicability of the amendment to Section 54(1) of the GST Act - HELD THAT:- It would be apparent that the amendment would be prospective in nature, unless so specified, which is not the case and therefore, the amended Section 54(1) would be applicable to the application for refund filed post 01/02/2019 to claim for refund in respect of returns filed consequent to that date. It would therefore, be apparent that the application for refund of the input tax to be filed by the petitioner would be covered by the earlier definition of ‘relevant date’ which defined the same as end of financial year and not the amended definition of ‘relevant date’ which defines it as due date for furnishing return.
The application filed by the petitioner for refund of the input tax for the month of December, 2017 ought to have been entertained for the above period by the respondents and appropriate orders could have been passed - The petition is allowed by directing the respondents to accept and entertain the applications for refund of input tax and process them according to the rules as applicable.
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2023 (11) TMI 662
Detention and seizure of vehicle - scope of section 129 and 130 of CGST Act - it was submitted that exercise of powers under Section 129 and thereafter switching over to Section 130 and passing order thereunder without availing the petitioner the benefits of release of the goods under Section 129, could be said to be without jurisdiction.
HELD THAT:- Rule, returnable on 27.9.2023.
In the facts and circumstances of the case, by way of interim relief, it is directed that the goods of the petitioner as well as vehicle bearing registration vehicle Truck No. GJ- 09-AU-2976, shall be released, provided the petitioner comply with the conditions imposed - petition disposed off.
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