TMI Blog2018 (5) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tax. There is no doubt with regard to transaction in question as the Integrated Goods and Service Tax (IGST) has been charged by the petitioner in its invoice and when the IGST is required to be paid then there cannot be any intention to evade the payment tax namely SGST and CGST - the impugned seizure order dated 28.03.2018 passed by the respondent no.3 and the consequential notice dated 28.03.2018 issued under Section 129(3) of the Act are hereby set aside. Goods alongwith vehicle is to be released - petition allowed. - WRIT TAX No. - 583 of 2018 - - - Dated:- 5-4-2018 - Hon'ble Krishna Murari and Hon'ble Ashok Kumar,JJ. For the Petitioner :- Nishant Mishra JUDGEMENT (Per: Hon'ble Ashok Kumar, J.) 1. Heard Sri Nishant Mishra assisted by Sri Vipin Kushwaha, learned counsel for the petitioner and Sri C.B. Tripathi, learned Standing Counsel for the respondents-State. 2. With the consent of learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel for the petitioner has submitted that when the aforesaid vehicle in question was crossing through Ghaziabad, it was intercepted/detained by the Assistant Commissioner, State/Commercial Tax, Mobile Squad-VIIth Unit, Ghaziabad on 25.03.2018 at about 12.05 P.M. When the petitioner received the information about the detention of his goods and vehicle, the person incharge of the vehicle on instruction immediately downloaded the Transit Declaration Form at 3.13 P.M. and furnished the same before the respondent no.3 on 25.03.2018 itself. The said Transit Declaration Form-I which has been downloaded by the petitioner indicates all the details and it further indicates that the same has been got downloaded at 3.13 P.M. on 25.03.2018. 7. Learned counsel for the petitioner has submitted that though the Transit Declaration Form has been presented in pursuance of the insistence by respondent no.3 but it was not at all required to be furnished under the law. 8. The respondent no.3, however, has passed a seizure order dated 28.03.2018 by which he has seized the goods as well as vehicle on the ground that the goods were being transported from outside the state of U.P. without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution were amended. As per the amended Article 269-A, which pertains to levy and collection of Goods and Services Tax in the course of inter-state trade or commerce such tax shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Service Tax council. Import within the territory of India was included within the meaning of the term Inter-State Trade or Commerce and in respect of it tax, as aforesaid, would be levied and collected by the Government of India. 12. In pursuance to the aforesaid 101st Amendment of the Constitution three enactments were passed by the Parliament, i.e. the Integrated Goods and Services Tax Act 2017; the Central Goods and Services Tax Act 2017; the Union Territory Goods and Services Tax Act 2017 (hereinafter referred as ''UTGST Act'). In addition to the aforesaid three enactments, the Legislature of the State of Uttar Pradesh passed an enactment known as the ''UPGST Act, 2017'. 13. In matters of inter-State Trade and Commerce including import into the terri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified, are such, as may be prescribed. Now this prescription has been made under Rule 138 of the CGST Rules, 2017 which reads as under: 138. E-way rule.-Till such time as an E-way bill system is developed and approved by the Council, the Government may, by notification, specify the documents that the person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage. 17. As would be evident from a reading of the aforesaid rule, it refers to an E-way bill System which is to be developed by the GST Council and it provides for an interim arrangement by the Government till an E-way Bill System is so developed and approved. The words Government used therein is defined in Section 2(53) of CGST Act, 2017 to mean the Central Government . It is not in dispute that on the date of interception of the vehicle in question E-way Bill System had not been developed, therefore, the documents which were required to be carried during movement of any consignment of goods were those which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-State movements of goods, but, in our view it is only the Government of India which is empowered to issue such a notification in respect of inter-State trade under section 20(xv) of the IGST Act 2017 read with Section 68 of the CGST Act, 2017 and Rule 138 of the CGST Rules, 2017 made thereunder, as, the term ''Government' used in Rule 138 is defined in section 2(53) of the CGST Act, 2017 to mean the ''Central Government', just as, under section 2(9) of the IGST Act, 2017 ''Government' means '' the Central Government'. Moreover, with respect to Goods and Service Tax in relation to inter-State Trade the Parliament alone has the authority to legislate as would be evident from the 101st Amendment to the Constitution. 21. In this view of the matter, we are of the considered view that on the relevant date i.e. 24.03.2018, there was no requirement of carrying TDF Form-1 in the case of an inter-State supply of goods. In fact on the relevant date there was no prescription of the documents to be carried in this regard under Rule 138 of the CGST Act, 2017, accordingly, the seizure and penalty imposed upon the petitioners based on the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of a provision would be too technical a ground for interference. We are invalidating the action on account of absence of any notification by the Central Government under Rule 138 of CGST Rules, 2017 and in view of incorrect application of notification issued by the State Government under Rule 138 of UPGST Rules. 25. We are supported in our view not only by the statement made by Central Government Counsel as recorded hereinabove, but also by the judgment of the Kerala High Court on the subject as reported in ASCICS Trading Company v. Assistant State Tax Officer anr., 2017 NTN (Vol.65) 145, wherein it has been held as under: 3. To a pointed query as to the power of the State Government to detain goods for alleged non compliance with the requirement of carrying the prescribed documents under the I.G.S.T. Act, which is the basis for the detention in Ext. P5 notice impugned in the writ petition, the learned Government Pleader would take me through the provisions of the IGST Act, CGST Act and SGST Act and in particular, the provisions of Section 4 and Section 20 of the IGST Act and Section 6 of the CGST Act read with Rule 138 of the CGST Rules as amended by notification No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such amount as may be specified, to carry with him such documents and such devices as may be prescribed. This prescription is contained in Rule 138 of the Central Goods and Services Tax Rules, 2017, but, no notification had been issued by the Central Government under the said rule specifying the documents that a person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage, therefore, the rule was practically inoperative and there was no requirement of carrying any such document. The invoice and other documents which were being carried were sufficient for the purpose of transportation, especially as, they revealed that it was an inter-State supply of goods and the IGST at the rate of 18% had already been paid. 28. According to learned counsel for the petitioner when Rule 138, as originally enacted, ceases to exist on 01.02.2018, then any document of any kind including the Transit Declaration Form-I specified by the State Government in exercise of power under originally enacted Rule 138 was not required to be generated by a dealer after 1st February, 2018, and therefore, the entire proceedings against the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with law. 33. We find no substance in the submission of learned counsel for the State. 34. We noticed that the notification dated 21.07.2017 has already been amended by the notification No. 1359 dated 20.09.2017 and on account of aforesaid amendment, the UPGST (4th Amendment) Rules, 2017 was introduced and made effective with effect from 01.02.2018 vide notification No.138 dated 30.01.2018, therefore, in our opinion, the initial notification no.1014 by which e-way bill-01, e-way bill-02, e-way bill-03 and TDF (Transit Declaration Form) was introduced stands rescinded. 35. We are in agreement with the submission of learned counsel for the petitioner that with effect from 01.02.2018 there was no requirement to download the Transit Declaration Form-I as the same was not required under the law after the aforesaid cut of date. 36. There is no doubt with regard to transaction in question as we find that the Integrated Goods and Service Tax (IGST) has been charged by the petitioner in its invoice and when the IGST is required to be paid then there cannot be any intention to evade the payment tax namely SGST and CGST. 37. In view of the aforesaid, the impugned seizure ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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