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TMI Blog2021 (4) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... 41; Weigh Slip; Tax Invoice No.183 dated 10.03.2021 of Marwar Steels etc. were furnished, yet he did not allow the petitioner to move. 4. Mr. Sharad Kothari invites Court's attention towards the documents placed on record and highlights that in spite of the fact that the requisite documents were produced before the respondent No.2 on 11.03.2021 itself, he firstly directed the petitioner No.2 to remain stationed with the vehicle and goods loaded therein for the purpose of physical verification. He firstly issued notice in MOV-2 and, thereafter on 15.03.2021, got extension to complete inspection from the competent authority, simply with a view to conduct inquiry relating to alleged wrongful availment of input tax credit. 5. It is the argument of the petitioners that such fishing and rowing inquiry in relation to availment of input tax credit and suspicion about the purchase transaction is not within the domain of respondent No.2, while exercising powers under Section 68 of the CGST Act, 2017 (for short, 'the Act of 2017') while goods are in movement. It is argued by learned counsel for the petitioners that such inquiry, if at all, is necessary, the same is permissible t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. [Civil Appeal No.8941/2019] and argues with equal vehemence that Hon'ble the Supreme Court has clearly held that the High Court should not interfere and issue order(s) of release of the vehicles/goods and in appropriate case, it should direct the concerned petitioner to furnish security as provided under Rules 140 and 141 of the Rules of 2017. 10. Learned counsel further relies upon orders dated 15.03.2019 [M/s. Amit Traders Sangariya Vs. State & Ors. : SBCWP No.2055/2019), 05.02.2020 (M/s. Govindwal Sahib Vanaspati Mills : SBCWP No.48/2020); and 03.03.2021 (Leeladhar Meghwal & Anr. Vs. The Asstt. Commissioner State Commercial Taxes : SBCWP No.2672/2021) passed by this Court and judgment of Gujarat High Court dated 06.11.2020, rendered in the case of Majid Bilalbhai Akbani Vs. State of Gujarat (Special Civil Application No.12754/2020) to contend that in all similar cases, the Courts have either refused to interfere or has required the concerned petitioner to furnish bank guarantee in accordance with Rules 140 and 141 of the Rules of 2017. 11. During the course of arguments, Mr. Bhandari adverts to the provisions contained in Section 129 of the Act of 2017 and argues that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No.2. Complete report of the jurisdictional assessing authority, as mentioned in Annex.7, is not on record. 18. Mr. Bhandari's contention that the enquiry being undertaken by the respondent No.2 is permissible as per the provisions of Section 129 (1) of the Act of 2017, on a deeper scrutiny turns out to be not as palatable as has been projected. Because, sub- section (1) uses the expression "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.........". The language used in sub-section (1) of Section 129 of the Act of 2017 is indicative of the position that the goods in transit or under stock, which are in transit themselves must be subject matter of violation/contravention of the statutory provision. 19. As far as applicable tax on the goods under consideration is concerned, the same has admittedly been appropriately charged and the goods and vehicle in transit are accompanied with the prescribed documents. Thus, in the prima-facie opinion of this Court, provision of Section 129 cannot be resorted to. It is moreso, when the allegation is, that the seller/consigner is seekin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by any Constitutional Court. The assessees and the authorities under CGST/SGST/IGST are giving their own interpretation of the provisions of the Act relating to Goods in Transit. 25. All stake holders are trading in the new GST regime with uncertainties as the path is comparatively unfamilier, unmarked and unpaved. The parameters of the authorities' powers and dealers' duties/responsibilities/liabilities are yet to be demarcated. 26. Notice dated 18.03.2021 (Annex.9) is an example of such uncertainty. A perusal of the said notice issued in MOV-07 shows that respondent No.2 has jumped to propose penalty under clause (b) of Section 129(1)(a) on the pretext that as per petitioner No.2, no-one has appeared for the owner of goods and proposed penalty as high as 50% of the value of goods. As against this, he was firstly required to propose penalty under clause (a) of Section 129(1), which would have been equal to the amount of tax. Given that the penalty under clause (a) would have been Rs. 1,93,460/- and proposed penalty under clause (b) is Rs. 10,74,780/-, in the opinion of this Court, the statutory remedies will be inefficacious. Even, remedy relating to release of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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