TMI Blog2019 (3) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... 129 of Act, 2017 - What is, therefore, noticed is that for the application of Sections 129 and 130 of the Act, 2017 it is immaterial that the person proceeded against is not a registered person or a supplier or a taxable person or is not doing any business as provided in any of the sub sections of Section 2 of the Act, 2017. It is enough that he is a 'transporter' of goods and that the goods are being transported and have been seized in transit and if the charge is made out against the transporter, the respondents can proceed to seize such goods including the conveyance. In the present case what we find is that a show cause notice has been issued to the petitioner on 17.12.2018 and it is always open for the petitioner to file a reply to the same. Therefore, the contention of the petitioner that he is not doing any business in respect of sale or purchase of the goods or is not concerned with the goods as he is a mere transporter and is only providing vehicles for transporting and therefore the impugned notice is bad and without any substance and is rejected. Petition dismissed. - Writ Tax No. - 1660 of 2018, 1676 of 2018, 1697 of 2018, 1661 of 2018, 1645 of 2018 - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2017. It is stated that a drive was lodged against 142 bogus firms involving 1519 Trucks through which goods were sought to be transported and an F.I.R. No. 0740 of 2018 was also lodged under sections 420, 463, 464, 468, 471, 34, 120-B of I.P.C. and section 132 of the UPGST Act, 2017 in police station Vibhuti Khand, Gomti Nagar, Lucknow. It is stated that the notice under section 130 of the UPGST Act, 2017 is with reference to the invoice bilty and E-Way Bill alleging that the tax on such transaction has not been deposited by the parties. Referring to the E-Way bill, copy of which has been filed as Annexure-3 to the writ petition, learned counsel for the petitioner submits that the GST registration number has been mentioned therein as 09AERPY1093C1Z1 in the name of M/s Kusum Traders and the place of business has been shown as Siddharth Nagar. The details of the consignee is also given as GST No. 07CNSPS9695C1Z1 M/s Bhawna Trading Company, place of business is mentioned as Rui Mandi Sadar Bazar Delhi. The E-way bill is shown as valid upto 3.11.2018, 11.59 p.m. and its status has been shown to be active. The ID of the transporter is shown as 09BDCPJ8219C2ZP/Junction Road Line. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner. The learned counsel for the petitioner, therefore, submits that the transporter was duly carrying all the documents namely, E-way bill as required containing all the information therein and, therefore, the respondents could have proceeded to make recovery or issue notice under section 130 of the UPGST Act, 2017 or otherwise against the consignor or consignee. The counsel therefore referring to the notice dated 10.12.2018 filed as Annexure-1 to the writ petition submits that all the terms were mentioned in the E-way bill including registration number, Id number, GST number and name and address of the consignor and consignee, therefore, it was absolutely wrong to say that the dispatch or delivery has been made to bogus address and that the name of the transport company mentioned on the E-way bill was also found to be bogus. Shri Manish Goyal, learned Addl. Advocate General, on the other hand, submitted that the documents filed as Annexure-3 to the writ petition no. 1660 of 2018 is a fraudulent document since it does not disclose the identity of the transporter nor does it disclose how many vehicles were given and for how many days, the vehicle were given to the trader. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... starting from Kanpur on 4.10.2018 at 4.53 p.m. Learned Addl. Advocate General, therefore, submits that this is a clear case of fraud where the same vehicle is shown as starting from Siddharth Nagar on 4.10.2018 at 6.42 a.m. in one E-way bill and in another E-way bill it is shown as starting from Kanpur on 4.10.2018 at 5.43 p.m. whereas in the e-way bill no. 431029790982 it is shown as starting from Kanpur on 15.10.2018 at 6.33 p.m. Referring to Annexure-4 to the supplementary counter affidavit, he further submitted that for cancellation of registration a show cause notice was issued to one Shri Ravi Shankar Yadav, Mahadeo Ghurhu Itwa Siddharth Nagar on 29.11.2018 and registration was infact canceled on 24.12.2018, therefore, the contention of the petitioner that in the documents filed as Annexure-3 to the writ petition the G.S.T. Registration of the consignor has been shown to be operative is not correct. He further referred to page 25-A of the supplementary counter affidavit and submitted that Ravi Shankar Yadav is the proprietor of M/s Kusum Traders in whose name the permanent account number (PAN) has been issued and shows his correct status as canceled and mentions the commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of which has been filed as Annexure-11 to the counter affidavit. It is stated that the consignor and the consignee in respect of both the vehicles no. UP92T 0721 are the same. In paragraph 24 of the counter affidavit, it is stated that the registration of M/s Kusum Traders has already been cancelled as after inspection of the place of business of M/s Kusum Traders it was found that there was no such firm in existence. In paragraph 26 of the writ petition it is stated that Ashok Kumar Bhatia, the petitioner herein is a partner in S.G.C. Carrier, Kanpur, which is registered under the GST Act and the petitioner is shown as owner of vehicle no. UP92T 0724. The learned Additional Advocate General further referred to Rule 138 Sub Rule (2) of G.S.T. Rules, 2017 and submitted that the sub rule provides that where the goods are transported by the registered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or a public conveyance, by road, the said person shall generate the e-way bill in Form GST EWB-01 electronically on the common portal after furnishing information in Part B of Form GST EWB-01 . He submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is context, he submits that the petitioners have not taken any ground in the writ petition that they have not been heard before passing of the impugned show cause notice or confiscation of goods or conveyance. The learned counsel further referred to provisions of Section 122 of CGST Act, 2017 which provides for 'Penalty for certain offences' and submits that under Clause (xviii) therein provides that where a taxable person who supplies, transports or stores any goods which he has reasons to believe are liable to confiscation under this Act, he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under Section 51 or short deducted or deducted but not paid to the Government or tax not collected under Section 52 or short collected or collected but not paid to the Government and referring to Sub Section (3) of Section 122 submits that any person who acquires possession of, or in any way concerns himself in transporting, removing, depositing, keeping, concealing, supplying, or purchasing or in any other manner deals with any goods which he knows or has reasons to believe are liable to confiscation under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an inquiry; (e) fails to issue invoice in accordance with the provisions of this Act or the rules made thereunder or fails to account for an invoice in his books of account, shall be liable to a penalty which may extend to twenty-five thousand rupees. Likewise he would be liable for confiscation of the conveyance under Section 130 of the Act, 2017 and the third proviso therein if such conveyance is used for carriage of goods if the offence is established. Section 130 of the Act, 2017 reads as under:- 130. Confiscation of goods or conveyances and levy of penalty:- (1) Notwithstanding anything contained in this Act, if any person- (i) supplies or receives any goods in contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or (ii) does not account for any goods on which he is liable to pay tax under this Act; or (iii) supplies any goods liable to tax under this Act without having applied for registration; or (iv) contravenes any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or (v) uses any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods or conveyance and deposit the sale proceeds thereof with the Government. Section 129 Sub section (1) of the Act may also be extracted here. 129. Detention, seizure and release of goods and conveyances in transit:- (1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released, (a) on payment of the applicable tax and penalty equal to one hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty; (b) on payment of the applicable tax and penalty equal to the fifty per cent. of the value of the goods reduced by the tax amount paid thereon and, in case of exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been seized and an F.I.R. has also been lodged in this regard, it is always open for the petitioner to apply to the trial court for release of the conveyance and beyond this no further observations are required. For reasons aforesaid, we do not find any good ground for interfering in the impugned show cause notice. The writ petition no. 1660 of 2018 lacks merit and is accordingly, dismissed. In the connected Writ petition no. 1676 of 2018 ( Rajendra Jain Vs State of U.P. Ors), the petitioner is seeking a direction to the respondent to drop the proceedings initiated against him vide notice dated 11.12.2018 under section 130 Act, 2017. A further relief has been sought directing the respondent no. 3 not to confiscate Vehicle No. UP-78CT 9789 and to release the said vehicle. The facts and circumstances of this case are identical to that of the leading Writ petition no. 1660 of 2018 and therefore, this connected Writ petition no. 1676 of 2018 is also dismissed in view of the observations made above. In the connected Writ petition no. 1697 of 2018 (Mrs. Meena Anil Jain Vs State of U.P. Ors), the petitioner is seeking a direction to the respondent to dr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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