9911796707
TMI Blog2018 (5) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... writ, order or direction declaring that Notification No.1014 dated 21.07.2017, as amended, is directory and not mandatory, in so far it requires carrying TDF for inter-State transaction covered by IGST Act, 2017; D. Issue a writ, order or direction quashing the Circular dated 06.02.2018 issued by Respondent no.2; 4. The petitioner is a firm dealing with all kinds of Iron Scrap etc. and is registered under the provision of GST Act, 2017. 5. In normal course of business, the petitioner firm sold M.S. Scrap vide Invoice dated 24.03.2018 for an amount of Rs. 4,14,712/- to M/s Cosmox Ferrours (P) Ltd., Bhagwanpur, District Hardwar, Uttrakhand. The petitioner has prepared a tax invoice against the aforesaid sales being Tax Invoice No.0257 dated 24.03.2018 indicating wherein the taxable value of the goods to the tune of Rs. 3,51,450/- on which Integrated Goods and Service Tax (hereinafter referred as 'the IGST') @ 18% has been charged to the tune of Rs. 63,262/-. Since the petitioner's firm is situated in District Faridabad, State of Haryana, it generated e-way bill prescribed under Central Goods and Service Tax, Rules (hereinafter referred as the 'CGST') aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TDF-I is not required under the law, the seizure of goods and the vehicle on the ground of non availability of TDF-I is wholly illegal and without jurisdiction. 10. It is further submitted that in exercise of power conferred by Rule 138, as originally enacted, State Government issued Notification No.1014 dated 21st July, 2017 specifying the following documents in clause (i) to (iv) to be carried while the goods are in movement or in transit storage- Clause Document Purpose i. e-way bill-01 In case of transportation of taxable goods valuing Rs. 5000/- or more from a place outside Uttar Pradesh into the State. ii. e-way bill-02 In case of transportation of taxable goods valuing Rs. 1 lakh or more within Uttar Pradesh or from a place within the State to place outside the State. iii. e-way bill-03 In case of transportation of taxable goods by e-commerce operators or by their authorised transporters, courier agents or agents for delivery to a person within Uttar Pradesh iv. TDF-01 In case of transportation of taxable goods valuing Rs. 5000/- or more from a place outside Uttar Pradesh to a place outside Uttar Pradesh and on exit of goods from the State, the informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act 2017 are also empowered to enforce CGST Act 2017. 15. It is also not in dispute that by virtue of section 20(xv) of the ''IGST Act, 2017' the provisions of ''CGST Act, 2017' apply in respect of matters covered by the IGST Act, 2017 on the subject of inspection, search, seizure and arrest. Chapter XIV of the CGST Act, 2017 deals with inspection, search, seizure and arrest. While section 67 of CGST Act, 2017 deals with the power of inspection, search and seizure, section 68 deals with inspection of goods in movement and it is this provision with which we are primarily concerned. It reads as under: "68. Inspection of goods in movement (1) The Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed. (2) The details of documents required to be carried under sub-section (1) shall be validated in such manner as may be prescribed. (3) Where any conveyance referred to in sub-section (1) is intercepted by the proper officer at any place, he may require the person in charge of the said conveyance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E-way Bill system was to come into force from 1.2.2018, but, the notification dated 29th December 2017 was rescinded by a subsequent notification dated 2.2.2018. Thereafter the notification dated 7th March 2018 has been issued regarding E-way Bill System. 18. Thus, E-way bill system has been prescribed only recently by a notification of the Government of India dated 7th March, 2018 whereby Rule 138 of the CGST Rules, 2017 has been amended and other Rules have been incorporated in this regard. These amendments are to come into force from a date to be specified by the Central Government which is specified w.e.f. 01.04.2018. 19. Be that as it may, the fact of the matter is that on the date of incident i.e. 24.03.2018 neither there was any E-way Bill System nor any notification by the Central Government under Rule 138 of the CGST Rules, 2017 requiring the carrying of a TDF Form or any other such document in the course of inter-State supply/movement of goods, as such, the very basis for passing the impugned orders and taking action against the petitioner as impugned herein is apparently erroneous and illegal. In view of the above, it cannot be said that there was any intent to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the State Act were empowered to exercise the powers under the CGST Act 2017, assuming it to be so, is in consequential, as, it is not their jurisdiction to exercise power of seizure which is under question, but, the manner in which they have exercised it on the basis of an inapplicable provision of law, as, they have proceeded on the presumption that TDF Form-1 prescribed under a notification issued by the State Government under Rule 138 of the Rules made under the UPGST Act 2017, was required to be carried, which is not the requirement in law. For this very reason, the judgment dated 29.1.2018 passed by a Coordinate Bench of this Court in Writ Tax No.95 of 2018 does not apply to the instant case, as the challenge therein was to the very power of the State Authorities under UPGST Act, 2017 to seize goods involved in inter-state supply. Here the question is whether petitioner was required to carry TDF Form I or not, which we have answered in the negative. 24. As regards the provisions of Section 129 UPGST Act, 2017 under which the impugned action has been taken, the same is not applicable to an inter-State trade or commerce. By virtue of Section 20 of the IGST Act, 2017, it is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t alongwith the consignment of goods the driver was carrying an invoice which mentioned that the goods were being taken from the State of Haryana to the State of Uttarakhand, therefore, as of now, it was an inter-State trade and there is nothing on record to show otherwise. The assertion that IGST had already been paid, has also not been denied by the opposite parties nor that both the consignor and consignee are registered dealers. Moreover, the requisite details having been mentioned in the invoice etc. the same would be verified at the point of destination and accordingly the matter would be scrutinized as regards the liability of Tax. The notification dated 21.7.2017 issued by the State Government under Rule 138 of the UPGST Rules, 2017 made under Section 164 of the UPGST Act, 2017 was clearly inapplicable for the reasons already mentioned earlier. There was no intent to evade tax. 27. The contention of Sri Nishant Misra, learned counsel for the petitioners was that the transaction was one of inter-State supply of goods, therefore, it was covered by the Integrated Goods and Services Tax Act, 2017 and as per section 20 (xv) thereof, in matters of inspection, search, seizure and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification. In the present case the Notification no. 1014 dated 21.07.2017 which was already amended by another notification No. 1359 dated 20.09.2017 has no legal value. The counsel for the petitioner has challenged the validity of the circular dated 06.02.2018 and has submitted that the same is ultra vires to UPGST Act and Rules 2017. 31. On the contrary, Sri C.B. Tripathi, learned counsel representing the State has submitted that the circular is nothing but a clarification to all subordinate authorities to act by applying the notification No.1014 dated 21.07.2017 though is amended but still is applicable. He has further submitted that the present proceedings are summary, and therefore, the petitioner be relegated to deposit the impugned demand and to participate in the penalty proceedings and in case, if the petitioner succeeded before the seizing authority, the amount if so deposited in compliance of the seizing/penalty order will be refunded. 32. Learned counsel for the State, therefore, submits that in view of the aforesaid reasons the earlier notification No.1014 dated 21.07.2017 automatically revived and the Commissioner has rightly issued the circular dated 06.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
