9911796707
TMI Blog2022 (1) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner's area was facing intermittent network outage. The transporter being in a hurry to complete the task assigned and as the goods had already been loaded to the vehicle commenced movement of goods without waiting for e-way bill to be generated and given by the petitioner. 2.1 On 07.09.2021 the truck loaded with the goods was intercepted by the respondent No.2. The driver produced the tax invoice as well as the transport receipt, there was no discrepancy found in the quantity as per invoice and the quantity loaded with the conveyance. However, the goods had been detained since e-way bill was not available with the driver. 2.2 On 10.09.2021 the detention order and confiscation notice were served to the petitioner. Apart from non-availability of e-way bill, the authority has alleged that the registration of the recipient was being shown as suspended and that the goods had been undervalued. 2.3 On 17.09.2021 on receipt of notice, the petitioner addressed a letter to the authority and request was made preliminary objections raised to invoke the powers of confiscation under Section 130 of the Goods and Services Tax Act, 2017 (the GST Act' hereinafter) and the request is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2021. 2.10 On 12.11.2021 such representation was accepted and revised letter was issued whereby the goods were ordered to be provisionally released on payment of tax, penalty and furnishing of bond. 2.11 In due compliance on 16.11.2021 the petitioner made payment of tax, penalty as well as furnished the bond. However, the respondent No.2 did not release the goods or conveyance. Instead on 20.11.2021 the respondent issued another letter intimating the petitioner that the goods and conveyance will be released provisionally on furnishing security along with the bond. 2.12 On 20.11.2021 the petitioner requested for the provisional release since the tax and penalty had already been paid and bond was furnished, however, that was not done and hence, his goods and vehicle continued to be detained. According to the petitioner, this is wholly arbitrary and illegal action. The representation had also been made contending that while it was ready to make payment of tax and penalty, for the remaining amount the statutory provision only required furnishing of bond. The demand for security is totally mechanical and contrary to the decision of this Court in case of Western Enterprises (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made of provision of law to urge that the insistence on the part of the respondent for furnishing of securities is not necessary. 6. Section 67(6) of the Gujarat Goods and Service Tax Act, 2017 ('the GST Act' hereinafter) speaks of the provisional release: "67(6): The goods so seized under sub-section (2) shall be released, on a provisional basis, upon execution of a bond and furnishing of a security, in such manner and of such quantum, respectively, as may be prescribed or on payment of applicable tax, interest and penalty payable, as the case may be." 7. It is clear that the goods seized can be released under Sub-section (2) of Section 67 of the GST Act on a provisional basis upon execution of the bond and furnishing of the security and on payment of applicable tax, interest and penalty as the case may be. Section 129(2) of the GST Act provides for adopting of provision of Section 67(6) of the GST Act which says that the provision of Sub-section (6) of Section 67 shall mutatis mutandis apply for detention and seizure of goods and conveyance. 7.1 According to the petitioner, Section 67(6) of the GST Act provides for two options for the taxable person for securing provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere at this stage. However, we are inclined to order provisional release of the goods pending the confiscation proceedings on the condition that the writ applicant shall deposit an amount of Rs. 18 Lakh with the respondent No.2 towards the tax and penalty. For the balance amount towards fine of Rs. 52 Lakh, the writ applicant shall execute a bond to the satisfaction of the respondent No.2 with an undertaking that ultimately, if the goods are held liable to be confiscated, he shall make good the entire payment towards fine in lieu of confiscation. This writ application is disposed of directing the respondent No.2 to release the goods on payment of Rs. 18 Lakh and other conditions as imposed by this Court." 3. We have heard Mr. Uchit N. Sheth, the learned counsel appearing for the applicant and Mr. Utkarsh Sharma, the learned AGP appearing for the opponents. 4. It is very sad to note that, the respondent No.2 being an officer of the GST Department has no idea as to what is a "bond" and what is a "bank guarantee". There is no good reason for the respondent No.2 to be wiser than what the Court has stated in para 5 of the order referred to above. We made ourselves very clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insist on the Bank Guarantee, when the requirement is of execution of the bond, to insist on the furnishing the security is something undesirable. 11. The communication dated 30.09.2021 received by the respondents, permitting provisional release on payment of tax, penalty and furnishing the Bank Guarantee for the value of goods. The representation of the petitioner was to the effect that it was ready to make payment of tax and penalty so far as the remaining amount is concerned, the statutory provision required the furnishing of the bond. The revised letter on 12.11.2021 ordered provisional release of the goods and conveyance upon payment of tax and penalty and furnishing of the bond. After its compliance, to insist on the further security merely because the Court had in case of Western Enterprises (supra) already made a distinction between the bond and the Bank Guarantee and when the petitioner has opted for the first option, the communication dated 20.11.2021 appears to be contrary to the decision of the Western Enterprises (supra). The collateral security would not be necessary. 12. Resultantly, present petition is allowed. The respondent is directed to release the goods and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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