9911796707
TMI Blog2023 (6) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... in Assam for a consideration of Rs. 26,75,000/- inclusive of all taxes. On 15th May, 2023, the vehicle bearing Registration No. NL01Q1559 was intercepted by respondent no. 2 at Hasimara, NH31C and the said vehicle was carrying three cars bearing Registration No. AS06AE2114, GK02CK1731 and MH12QF0944. On 16th May, 2023, the movements were physically inspected under the Provisions of Section 68(3) of the CGST Act, 2017 and a report was prepared and uploaded in Form GST MOV 04. Form GST MOV 6 was issued on the ground that the document produced against the goods intercepted i.e. second hand car bearing Registration No. AS06AE2114 appeared to be invalid and incomplete based on the discrepancies. On 23rd May, 2023 Form GST MOV 07 was issued whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 129 (1) (a) of the Act. Mr. Dhiraj Lakhotia, learned Advocate representing the petitioner submits that the order under Section 129 (3) of the Act of 2017 issued by the respondent no. 2 specifying the penalty amount not on the basis of the margin on sale of second hand car, as contemplated in law, as well as on the basis of 200% of the CESS, is contrary to the provisions of law and without jurisdiction. He further submits that the manner in which the value of the said car had been calculated by the respondent no. 2 is completely arbitrary and against the statutory provisions of the Act. Mr. Lakhotia submits that the respondent no. 2 had no jurisdiction to invoke penalty under Section 129 of the Act of 2017 as there is no contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 1/2018- Compensation CESS (Rate) dated 25th January, 2018. Mr. Bikramaditya Ghosh, Learned Advocate representing the respondent submits that the respondents have intercepted the Conveyance No. NL01Q1559 on 15th May, 2023 wherein the car of the petitioner was transported and on verification of the document, the respondent no. 2 found that no tax invoice or delivery chalan as per Rule 138A of the CGST and SGST Rule, 2017 was found carried physically by the person in-charge of the said car. Mr. Ghosh further submits that on careful examination of e-way bill it was found that the e-way bill is generated against the consignment note bearing No. 1028 dated 14th May, 2023 and consignment note is not a prescribed and valid document for m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the materials on record, impugned orders and judgments relied by the petitioner. The power of inspection, search and seizure can be carried out under Chapter XIV or in case of goods in transit under Section 129. On plain reading of Section 129 can be equated with the alternative dispute redressal mechanism and provides an opportunity to the owner of the goods or any other person to pay amount as specified under Section 129 (1) (a) or (b) or (c) of the said Act. Clause 129 (1) (a) of the Act which provides for payment of penalty equal to 200% of the tax payable on such goods or penalty equal to 50% of the value of the goods, further incorporates provision for determination of quantum of penalty under Section 129 (3), thus under the Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing penalty CESS could be included or the penalty amount can be imposed on the basis of the margin of sale of second-hand car is in question. This Court is of the view that the issues involved in the present writ application required final adjudication after giving an opportunity to file affidavit. This Court also satisfied that the petitioner has made out a prima facie case for interim order as prayed for. In view of the above, the respondents are directed to file affidavit-in-opposition within four weeks reply, if any be filed within two weeks thereafter. There will be an interim order to the extent that the respondent authorities shall release the vehicle of the petitioner in question on payment of the impugned demand in question excl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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