9911796707
TMI Blog2023 (3) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... ods found during inspection/search there were reasons to believe that the goods were liable to be confiscated and the same were seized by invoking power under Section 67(2) of the Act. A report of satisfaction that the goods were liable to be confiscated was prepared on the same date at 4.30 pm. The e-way bill status of the goods mentions that the e-way bill already expired on the date of inspection and seizure. E-way bill was generated on 9th February, 2022 for transporting fifteen thousand kilograms of cumin seeds and the same was valid upto 20th February, 2022. The goods were dispatched from Gujrat and were to reach Siliguri, West Bengal. The goods were confiscated from a godown which the petitioner claims to be three kilometres ahead of the final destination point mentioned in the e-way bill. Notice calling information under Section 129 of the Act was issued on 25th February, 2022 in the name of the transporter and the person in charge of the goods and the addressees were directed to appear in person or through authorized representative on or before 26th February, 2022 to show cause why tax and penalty will not be imposed for contravention of Section 129 of the Act. Hearing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, Form GST INS 02 has been issued. Had the goods been in transit, then corresponding Form MOV had to be issued. It has been submitted that there has been violation of principle of natural justice by not affording an opportunity of hearing to the petitioner prior to passing the order of penalty under Section 129 of the Act. The right to trade under Article 19(1)(g) of the Constitution of India has been infringed by the illegal seizure of goods. There is no conclusive finding of the authority that the petitioner intended to evade payment of tax or the goods which were seized, escaped payment of tax. On the contrary, the appellate authority opined that it was a trivial lapse on the part of the petitioner for which, penalty equal to two hundred percent of the tax payable on such goods ought not to have been imposed. It has been argued that the time mentioned in the order of seizure and the report of satisfaction clearly implies that the authority, with a biased and determined mind, decided the issue and the reason for seizure is recorded after the seizure is actually made. It has been stressed that it is only after the officer is satisfied that there are reasons to believe that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid provision. There has been no delay on the part of the authority. The goods that were seized from the disputed godown did not carry a valid e-way bill. The quantity of goods mentioned in the e-way bill relied upon by the petitioner, did not match the quantity of goods mentioned in the said e-way bill. The bill produced by the petitioner was issued in respect of fifteen thousand kilograms of cumin seeds whereas at the time of seizure only 12,840 kilograms of cumin seeds were found. The petitioner failed to produce any document in respect of the 12,840 kilograms of cumin seeds. As the aforesaid quantity of cumin seeds was found without a proper e-way bill, the authority invoked the provision of Section 129(1)(a) of the Act and the petitioner, claiming to be the owner of the goods, was imposed penalty equal to two hundred percent of the tax payable on such goods. There has been no error on the part of the authority in imposing the said penalty. The person in charge of the goods and the transporter, both were issued notice under Section 129(4) and opportunity of hearing was given to them prior to imposition of penalty. After the petitioner stepped in and claimed to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 129, but later the authority shifted their stand and invoked Section 68 read with Section 129 of the Act. Section 67(2) of the Act empowers the proper officer to confiscate goods, if secreted in any place, for evading payment of tax. The place may be searched and goods seized and the same shall be released on payment of applicable taxes. The proper officer, if has reasons to believe that the goods are stored in a warehouse or godown or any other place without paying tax or not paying requisite tax, may cause inspection, search and seizure. The provision relates to a particular 'place' where inspection, search and seizure can be made. Section 129 deals with detention, seizure and release of goods and conveyances, 'in transit'. The said provision is to be invoked when the goods are in movement on a conveyance. Here, the goods in question were not seized while in transit. They were seized from a godown, two days after the expiry of the e-way bill. The godown in question from where the goods were seized is approximately three kilometres ahead, as claimed by the petitioner, from the final destination mentioned in the e-way bill. As the goods were seized from a godown, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which the e-way bill ought to have been extended. The authority ought not to have imposed penalty without resorting to the proper provision. From the facts of the present case and the documents on record it appears that, though the authority found the goods stored in the godown to be of a lesser quantity but the authority never questioned the identity and quantum of the goods apropos the expired e-way bill. It is not the case of the respondent that the goods which were seized from the godown were not the goods which were transported by the expired e-way bill. On the contrary, the e-way bill number is recorded in the report filed by the concerned officer. The petitioner admits that the rest of the goods were sold out by him. It does not appear that the petitioner had the intention to evade tax as the petitioner already paid the taxable amount at the time of generation of the e-way bill. The authority has also failed to make out a case that there was any connivance between the buyer and seller in dealing with the goods without payment of necessary taxes. It appears that though initially the authority invoked the provision of Section 67 but thereafter shifted stand and relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
