TMI Blog2020 (9) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants have passed an order under Section 129 (1)(b) of the Act, by rejecting the documents tendered by the person in charge, until and unless that order is set aside, no order can be passed under Section 129 (1)(a) of the Act. Without expressing anything on the merits of the case, the impugned order is not in consonance with the provisions of law. Firstly he has to say whether the orders passed by respondent - Government are in accordance with law or not. Then, if it is not in accordance with law, he has to set aside the same, then pass the suitable order. By keeping pending those orders, whatever order has been passed is not sustainable in law. It appears to be contrary to each other. The matter is remitted to the learned Single Judge for considering afresh all the points and to pass an order in accordance with law - Appeal allowed by way of remand. - Writ Appeal Nos. 200011-200013 of 2020 (T-RES), - - - Dated:- 5-8-2020 - Mr. Justice B. A. Patilandthe And Mr. Justice Hanchate Sanjeev Kumar For the Appellants : Sri Vikram Huilgol, AGA For the Respondents : Sri Arvind Kamath, Senior Advocate for Smt. Veena J. Kamath, Advocate JUDGMENT This intra Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was given that the goods were not loaded at Kerala but the same has been taken somewhere in Karnataka as there is no processing units present at Kerala and there was absence of inward supply details in the business premises at Kerala and the goods under transit did not originate from Kerala. The goods under transit are nowhere related to documents tendered nor belongs to both the respondents shown in the consignment. Subsequently, the owner of the conveyance came forward and discharged the fine of ₹ 3,20,000/- under Section 130 (2) of the Central Goods and Services Tax Act, 2017 (hereinafter for brevity referred to as 'Act') and in pursuant to the payment of fine the conveyance was released on 16.05.2019, however, the owner of the goods did not come forward to discharge the tax penalty and as such the goods were confiscated and stored in the warehouse on 16.05.2019. Subsequently, after following the procedure, auction was conducted on 19.07.2019 and the successful bidder bid it for ₹ 75,44,799/-. Challenging the order dated 01.02.2019 as per Annexure-A and another order dated 25.02.2019 as per Annexure-A1 and 11.04.2019 as per AnnexureA2, the respondents filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. The owner of the goods has to take shelter under Section 129(1) (a) of the Act and the other persons who were in possession have to take shelter under Section 129 (1) (b) of the Act. When the appellants have rejected the documents tendered by the person in charge and has passed the order under Section 129 (1) (b) of the Act, the learned Single Judge had no occasion to take shelter under Section 129 (1) (a) of the Act. It is his further submission that the auction proceedings have not been challenged by the respondents. Under such circumstances, the order which has been passed is not sustainable in law and the same is liable to be set aside. On these grounds he prayed to allow the appeals. 8. Per contra, it is the submission of the learned Senior Counsel for the respondents that the goods which were under transit was accompanying the consignments receipts of the said goods along with necessary waybills and even a notice has been also issued to the consignee and they are entitled to get the goods released under Section 129 of the Act on payment of applicable tax and penalty equal to 100% of the tax payable on such goods. Even the learned counsel for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 exempted goods, on payment of an amount equal to five per cent of the value of goods or twenty five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty; (c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. (2) The provisions of sub-section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon: Provided further that the aggregate of such fine and penalty leviable shall not be less than the amount of penalty leviable under sub-section (1) of section 129: Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. (3) Where any fine in lieu of confiscation of goods or conveyance is imposed under sub-section (2), the owner of such goods or conveyance or the person referred to in sub-section (1), shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance. (4) No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard. (5) Where any goods or conveyance are confiscated under this Act, the title of such goods or conveyance shall thereupon vest in the Government. (6) The proper officer ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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