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TMI Blog2022 (8) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Clause (a) of Sub-Section (1) of Section 129 of the Central Goods & Services Tax Act / State Goods & Services Tax Act (hereinafter referred to as the 'CGST/SGST Acts') to get goods/conveyance/documents detained or seized in proceedings under Section 129 released is deprived of his right to file an appeal against the proceedings. While the petitioners in these cases contend for the position that they are not deprived of such right, the State contends that on account of the stipulation in sub-section (5) of Section 129 of the CGST/SGST Acts, on payment of amounts under sub-section (1), all proceedings which are the subject matter of a notice under sub-section (3) of Section 129 "shall be deemed to be concluded". 2. In order to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C-07. 4. Dr. Thushara James, the learned Senior Government Pleader appearing for the respondents would point out that on an assessee or a person who is the subject matter of proceedings under Section 129 CGST/SGST Acts, opting to make payment of tax and penalty in terms of Section 129(1)(a), the proceedings under Section 129 come to an end. She states that this is the effect of sub-section (5) of Section 129. She states that payments made under Section 129(1) (a) are paid and accepted in Form DRC-03, which is a form for voluntary payment and such payments cannot be the subject matter of any refund or adjudication at a later point of time. It is submitted that on payment of the amount under Section 129(1)(a), the entire proceedings should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm DRC-08. However, it is fairly pointed out that Section 107 provides an opportunity to a person aggrieved to challenge any order or any proceedings issued under any provision of the Act and the wording of that Section does not really make a distinction between persons who opt to make a payment under Section 129(1)(a) and persons who opt to provide security as provided for, in Section 129(1)(c). 5. I have considered the contentions raised. The relevant statutory provisions may be noticed. Sections 129 (1) (a), (3) and (5) of the CGST/SGST Acts, (as they stood prior to amendment w.e.f from 1.1.2022) read as under- "(1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure and also provides for the procedure to be followed for release of goods following such detention or seizure. As already noticed, Section 129(1)(a) provides that where the person who suffers the order on detention makes payment of tax and penalty, the goods shall be released. Section 129(1)(c) gives an option to a person suffering an order of detention to provide security instead of making payment of tax and penalty as provided for in Section 129(1)(a). However, the provisions of sub-section (3) of Section 129 contemplate the issuance of a notice and the passing of an order. A reading of sub-section (3) suggests to me that whether the person suffering the detention chooses to make payment under Section 129(1)(a) or chooses to provide se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to such electronic liability register by debiting the electronic cash ledger or the electronic credit ledger or the concerned person in accordance with the provisions of Section 49 of the CGST Act. (v) A summary of every order in FORM GST MOV-09 and FORM GST MOV-11 shall be uploaded electronically in FORM GST-DRC-07 on the common portal." A reading of sub-section (3) of Section 129 of the CGST/SGST Acts, the provisions of Rule 142 referred to above and the provisions of the circular, cumulatively, compel me to hold that whether or not a person opts to make payment under section 129(1)(a) or to provide security under Section 129(1)(c), the responsibility of the officer to pass an order under sub-section (3) of Section 129 and to uploa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority under Section 107 of that Act. The fact that the culmination of proceedings in respect of a person who seeks to make payment of Tax and Penalty under Section 129(1)(a) does not result in the generation of a summary of an order under Form DRC-07 cannot result in the right of the person to file an appeal under Section 107 being deprived. The fact that the system does not generate a demand or that the system does not contemplate the filing of an appeal without a demand does not mean that the intention of the legislature was different. In the light of the above finding, these writ petitions will stand allowed in terms of prayer (i) in both cases. The concerned among the respondents shall do the needful within one month from the date of r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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