w w w . L a w y e r S e r v i c e s . i n



Kamlesh Steels, Rep. by its Proprietor Milap Chand Jain Bokadia v/s The Deputy State Tax Officer, IDA Gandhinagar Circle, Hyderabad Rural, Hyderabad & Others


Company & Directors' Information:- V S L STEELS LIMITED [Active] CIN = U27109KA2003PLC058185

Company & Directors' Information:- H M STEELS LIMITED [Active] CIN = U27106PB1999PLC022707

Company & Directors' Information:- S CHAND AND COMPANY LIMITED [Active] CIN = L22219DL1970PLC005400

Company & Directors' Information:- S CHAND AND COMPANY LIMITED [Active] CIN = U22219DL1970PLC005400

Company & Directors' Information:- D S R M STEELS PRIVATE LIMITED [Active] CIN = U27310TZ2005PTC012353

Company & Directors' Information:- P D P STEELS LTD [Active] CIN = U65921WB1996PLC077555

Company & Directors' Information:- S D S STEELS PRIVATE LIMITED [Active] CIN = U51420TN2006PTC060563

Company & Directors' Information:- R K K R STEELS PRIVATE LIMITED [Active] CIN = U27101TN1965PTC006069

Company & Directors' Information:- O P STEELS PRIVATE LIMITED [Active] CIN = U27109DL1987PTC027085

Company & Directors' Information:- H R STEELS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC070914

Company & Directors' Information:- B G STEELS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC042560

Company & Directors' Information:- N G A STEELS PRIVATE LIMITED [Active] CIN = U27109TZ1995PTC005908

Company & Directors' Information:- C V S STEELS PRIVATE LIMITED [Active] CIN = U29253DL2009PTC189824

Company & Directors' Information:- P P S. STEELS INDIA PRIVATE LIMITED [Active] CIN = U27106TZ2002PTC010188

Company & Directors' Information:- J P STEELS LTD [Active] CIN = U27107AS1992PLC003736

Company & Directors' Information:- K P STEELS LIMITED [Liquidated] CIN = U27109TG1986PLC006878

Company & Directors' Information:- P L STEELS PRIVATE LIMITED [Active] CIN = U27109UR2004PTC000445

Company & Directors' Information:- Z V STEELS PRIVATE LIMITED [Active] CIN = U51909MH1997PTC109791

Company & Directors' Information:- M Q STEELS PRIVATE LIMITED [Active] CIN = U74899DL1997PTC089231

Company & Directors' Information:- N. STEELS PRIVATE LIMITED [Active] CIN = U27106GJ2009PTC056732

Company & Directors' Information:- C I C STEELS PVT LTD [Active] CIN = U27109WB1988PTC045251

Company & Directors' Information:- M J R STEELS PVT LTD [Active] CIN = U74999WB1996PTC076803

Company & Directors' Information:- H S M STEELS PRIVATE LIMITED [Active] CIN = U27100TG2010PTC067913

Company & Directors' Information:- D C STEELS LIMITED [Active] CIN = U27106PB1990PLC010517

Company & Directors' Information:- G M K STEELS PRIVATE LIMITED [Active] CIN = U74899DL2000PTC108623

Company & Directors' Information:- S I F STEELS LIMITED [Active] CIN = U27310GJ1972PLC002137

Company & Directors' Information:- M U STEELS PRIVATE LIMITED [Active] CIN = U27100DL2011PTC228818

Company & Directors' Information:- M P K STEELS I PRIVATE LIMITED [Active] CIN = U27109AS2005PTC007674

Company & Directors' Information:- L M STEELS PRIVATE LIMITED [Active] CIN = U13209UP1980PTC005064

Company & Directors' Information:- S I STEELS INDIA PRIVATE LIMITED [Strike Off] CIN = U52390PY2009PTC002285

Company & Directors' Information:- P M P STEELS LIMITED [Strike Off] CIN = U93090TN1994PLC026915

Company & Directors' Information:- IDA INDIA PRIVATE LIMITED [Strike Off] CIN = U74900DL1998PTC091860

Company & Directors' Information:- M A STEELS PRIVATE LIMITED [Active] CIN = U27109KL2002PTC015691

Company & Directors' Information:- M D STEELS PRIVATE LTD. [Active] CIN = U74899DL1987PTC029358

Company & Directors' Information:- L D STEELS (HYDERABAD) LTD [Under Liquidation] CIN = U27109TG1973PLC001571

Company & Directors' Information:- D. I. STEELS PRIVATE LIMITED [Active] CIN = U27100MH2005PTC153442

Company & Directors' Information:- A B M STEELS PRIVATE LIMITED [Active] CIN = U27101GJ1986PTC008391

Company & Directors' Information:- T & S STEELS INDIA PRIVATE LIMITED [Strike Off] CIN = U27109KA2007PTC043617

Company & Directors' Information:- T G V STEELS LIMITED [Strike Off] CIN = U27100TG1996PLC023224

Company & Directors' Information:- A TO Z STEELS PRIVATE LIMITED [Active] CIN = U74899DL1988PTC030735

Company & Directors' Information:- S K STEELS PVT LTD [Active] CIN = U27109WB1971PTC027999

Company & Directors' Information:- B A JAIN & CO. PRIVATE LIMITED [Active] CIN = U21014WB1997PTC083658

Company & Directors' Information:- B. K. STEELS PVT. LTD. [Active] CIN = U27109WB1995PTC068343

Company & Directors' Information:- S M STEELS INDIA PRIVATE LIMITED [Active] CIN = U74899DL1974PTC007190

Company & Directors' Information:- I R C STEELS LTD [Active] CIN = U45208WB1966PLC024114

Company & Directors' Information:- G K M STEELS PRIVATE LIMITED [Active] CIN = U27105DL2012PTC246243

Company & Directors' Information:- R B STEELS PRIVATE LIMITED [Active] CIN = U27106AS1994PTC004200

Company & Directors' Information:- S. A. STEELS PVT LTD [Strike Off] CIN = U27106PB1985PTC006227

Company & Directors' Information:- A H STEELS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC073017

Company & Directors' Information:- J K L STEELS PVT LTD [Active] CIN = U27104DL1997PTC088424

Company & Directors' Information:- E D STEELS PVT LTD [Active] CIN = U27310MH1975PTC018180

Company & Directors' Information:- P AND B STEELS INDIA LIMITED [Active] CIN = U27106KL1995PLC008742

Company & Directors' Information:- V K STEELS PVT LTD [Strike Off] CIN = U27310HP1987PTC007712

Company & Directors' Information:- N E STEELS PRIVATE LIMITED [Strike Off] CIN = U27104WB2002PTC116973

Company & Directors' Information:- U R STEELS PRIVATE LIMITED [Strike Off] CIN = U27100TG2008PTC060899

Company & Directors' Information:- H S STEELS PRIVATE LIMITED [Active] CIN = U27109PB1995PTC016111

Company & Directors' Information:- G S STEELS PRIVATE LIMITED [Active] CIN = U74899DL1988PTC030339

Company & Directors' Information:- P M P STEELS PRIVATE LIMITED [Strike Off] CIN = U27109TZ1990PTC002882

Company & Directors' Information:- W S STEELS PRIVATE LIMITED [Strike Off] CIN = U27106PB1982PTC005084

Company & Directors' Information:- K M S STEELS PRIVATE LIMITED [Strike Off] CIN = U27310TZ1997PTC008161

Company & Directors' Information:- N S JAIN AND COMPANY PRIVATE LIMITED [Active] CIN = U31909MH1997PTC112719

Company & Directors' Information:- S T STEELS PVT LTD [Active] CIN = U27106PB1990PTC010915

Company & Directors' Information:- K L STEELS PRIVATE LIMITED [Active] CIN = U74899DL1984PTC038783

Company & Directors' Information:- S S A P STEELS PRIVATE LIMITED [Active] CIN = U27106DL1999PTC101645

Company & Directors' Information:- M F STEELS PVT. LTD [Active] CIN = U74899DL1971PTC005517

Company & Directors' Information:- R G STEELS PVT LTD [Active] CIN = U27109WB1987PTC042824

Company & Directors' Information:- C N STEELS PVT LTD [Strike Off] CIN = U27100GJ1994PTC022570

Company & Directors' Information:- K L STEELS P LTD [Strike Off] CIN = U27109PB1984PTC005895

Company & Directors' Information:- S B STEELS PRIVATE LIMITED [Active] CIN = U74899DL1984PTC017414

Company & Directors' Information:- V I A STEELS PRIVATE LIMITED [Strike Off] CIN = U27109UP1993PTC015933

Company & Directors' Information:- K K STEELS INDIA PVT LTD [Active] CIN = U27109PB1990PTC010714

Company & Directors' Information:- D R J STEELS PRIVATE LIMITED [Active] CIN = U27310PB2007PTC031003

Company & Directors' Information:- V K JAIN AND CO PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055478

Company & Directors' Information:- S R R STEELS PRIVATE LIMITED [Strike Off] CIN = U27105KL1998PTC012156

Company & Directors' Information:- H. V. JAIN & CO PRIVATE LIMITED. [Active] CIN = U74140MH2009PTC189774

Company & Directors' Information:- M. G. STEELS LIMITED [Active] CIN = U74999DL1986PLC025140

Company & Directors' Information:- A B N STEELS PRIVATE LIMITED [Strike Off] CIN = U27106OR1996PTC004473

Company & Directors' Information:- A Y STEELS PRIVATE LIMITED [Active] CIN = U74120UP2014PTC066079

Company & Directors' Information:- I D STEELS PRIVATE LIMITED [Active] CIN = U74899DL2000PTC109048

Company & Directors' Information:- V R STEELS PRIVATE LIMITED [Strike Off] CIN = U74899DL1981PTC011447

Company & Directors' Information:- R D STEELS LIMITED [Active] CIN = U27106PB1999PLC022934

Company & Directors' Information:- P S G STEELS PRIVATE LIMITED [Active] CIN = U27109HR1984PTC018249

Company & Directors' Information:- N D STEELS LTD [Strike Off] CIN = U28111WB1989PLC047025

Company & Directors' Information:- K J STEELS PVT LTD [Strike Off] CIN = U27310GJ1981PTC004392

Company & Directors' Information:- V L STEELS PRIVATE LIMITED [Strike Off] CIN = U27107WB2004PTC100815

Company & Directors' Information:- R K STEELS PRIVATE LIMITED [Strike Off] CIN = U74899DL1985PTC020523

Company & Directors' Information:- S F STEELS PVT LTD [Active] CIN = U51900WB2006PTC107234

Company & Directors' Information:- E R S STEELS PVT LTD [Strike Off] CIN = U27104KL1994PTC008341

Company & Directors' Information:- K K K STEELS PRIVATE LIMITED [Strike Off] CIN = U27106PB1998PTC020961

Company & Directors' Information:- K. N. STEELS PRIVATE LIMITED [Strike Off] CIN = U27107WB2007PTC117868

Company & Directors' Information:- A AND A STEELS PVT LIMITED [Strike Off] CIN = U27104CH1993PTC012992

Company & Directors' Information:- M G INDIA STEELS PRIVATE LIMITED [Strike Off] CIN = U27104TN2005PTC056331

Company & Directors' Information:- N. J. STEELS PRIVATE LIMITED [Amalgamated] CIN = U27108DL1996PTC077190

Company & Directors' Information:- B M STEELS PRIVATE LIMITED [Active] CIN = U51102TN1976PTC007165

Company & Directors' Information:- R T STEELS PVT LTD [Active] CIN = U27109TG1982PTC003556

Company & Directors' Information:- S N JAIN STEELS PRIVATE LIMITED [Strike Off] CIN = U27106UP1989PTC010961

Company & Directors' Information:- L. R. STEELS PRIVATE LIMITED [Strike Off] CIN = U27106UP2002PTC026946

Company & Directors' Information:- R. S. A. STEELS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U51392DL2011PTC213878

Company & Directors' Information:- K S R STEELS PRIVATE LIMITED [Strike Off] CIN = U99999DL1992PTC049052

Company & Directors' Information:- S R STEELS PVT LTD [Strike Off] CIN = U27104PB1983PTC005586

Company & Directors' Information:- M B STEELS PRIVATE LIMITED [Strike Off] CIN = U99999MH1975PTC018595

Company & Directors' Information:- M R STEELS PVT LTD [Active] CIN = U27108MH1980PTC022743

Company & Directors' Information:- N I STEELS PRIVATE LIMITED [Strike Off] CIN = U27209UP1978PTC004654

Company & Directors' Information:- J M M D STEELS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC035398

Company & Directors' Information:- JAIN AND CO PVT LTD [Strike Off] CIN = U65921UP1925PTC000288

Company & Directors' Information:- B C S STEELS PRIVATE LIMITED [Strike Off] CIN = U27100PB2005PTC027831

Company & Directors' Information:- K. A. STEELS PRIVATE LIMITED [Active] CIN = U27100PB2011PTC034822

Company & Directors' Information:- B K STEELS PRIVATE LIMITED [Strike Off] CIN = U27109PB1985PTC006128

Company & Directors' Information:- A P R STEELS PRIVATE LIMITED [Strike Off] CIN = U27109DL2000PTC104579

Company & Directors' Information:- H A S STEELS PRIVATE LIMITED [Active] CIN = U27109DL2004PTC125908

Company & Directors' Information:- D N S STEELS PRIVATE LIMITED [Active] CIN = U28991DL2013PTC259964

Company & Directors' Information:- MILAP PRIVATE LIMITED [Strike Off] CIN = U74900DL2013PTC252179

Company & Directors' Information:- A Z STEELS PVT LTD [Strike Off] CIN = U72100NL1993PTC003884

Company & Directors' Information:- A N STEELS PVT LTD [Strike Off] CIN = U72100AS1993PTC003848

    Writ Petition No. 2563 of 2020

    Decided On, 11 November 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE M.S. RAMACHANDRA RAO & THE HONOURABLE MR. JUSTICE T. AMARNATH GOUD

    For the Petitioner: N. Kodanda Rama Rao, Advocate. For the Respondents: J. Anil Kumar, Learned Special Counsel for Commercial Taxes.



Judgment Text

M.S. Ramachandra Rao, J.1. The petitioner is a trader in Steels registered under the Central Sales Tax Act, 1956 (for short ‘the Act’) having its registered office in Secunderabad.2. It purchased, in the course of its business, material from M/s.Steel Authority of India Limited (SAIL), Kodambakkam, Tamil Nadu.3. While the goods were in transit from the place of purchase to the petitioner’s business premises at Secunderabad and when the carrier/goods vehicle was en route at Jeedimetla, it was checked and detained at IDA Jeedimetla on 22-01-2020 at 11.15 p.m.4. A notice was issued Ex.P1- Form GST MOV-06 dt.22.01.2020/order of detention under Section 129(1) of the Act on the ground that prima facie the ‘documents tendered were found to be defective’ and that the goods were being transported from Salem in the State of Tamil Nadu to Distillery Road, Secunderabad, but the vehicle was checked at IDA Jeedimetla, Hyderabad. It is alleged that there is a ‘mismatch between the goods in movement and the documents tendered’ i.e., that the goods were checked at IDA Jeedimetla; and so the petitioner has to pay tax and penalty as per the provisions of the Act.5.On receipt of information of detention of the vehicle from the driver of the vehicle, the petitioner replied vide Ex.P4 dt.23-01-2020 that the material from M/s SAIL at Salem in Tamilnadu is purchased by various dealers at Hyderabad for delivery at various destinations in Hyderabad; that the vehicles come to Hyderabad in groups through Outer Ring Road and all the trucks assemble at IDA Jeedimetla; and that from that place, the person in charge from M/s SAIL i.e. vendor, directs them to their destinations.It was contended that the goods vehicle carrying material of petitioner on its way to its destination was stopped at IDA Jeedimetla and the driver of the vehicle was waiting for the person in-charge from M/s SAIL; and at that time, the vehicle was detained and checked in spite of the fact that the goods vehicle was carrying all required documents such as tax invoice, e.way bill dt.20-01-2020, which was valid from 21-01-2020 to 27-01-2020. Petitioner requested the respondents to release the vehicle along with goods.6. There was no response to the said submission of the petitioner made to the 1st respondent.7. So, the petitioner made another representation on 25-01-2020 to the 1st respondent requesting him to pass a formal order so that they could seek further remedy and in the meantime requested to release the vehicle along with goods on payment of tax as demanded by 1st respondent; and that they are making online payment of Rs.9,40,628/- towards one time tax of Rs.4,70,315/- and one time penalty of a likesum under protest.8. Thereupon the vehicle carrying the goods and the vehicle was released on 25-01-2020.9. But no formal order was passed by the 1st respondent assigning reasons why it he did not agree with the petitioner’s objections/reply Ex.P4 dt.23.1.2020 to the Ex.P1 dt.22.1.2020/Order of detention.Contentions of petitioner 10. Petitioner contends that the action of the 1st respondent in detaining the vehicle containing the goods of the petitioner on 22-01-2020 at IDA Jeedimetla and then demanding that petitioner should pay tax and penalty as per the provisions of the Act though all the required documents were available with the driver of the vehicle and later releasing it on 25-01-2020 only after collecting from the petitioner Rs.9,40,428/- towards tax and penalty, is illegal, arbitrary and violative of Article 14 of the Constitution of India as well as Article 301 of the Constitution of India, and seeks a direction to the 1st respondent to refund the tax and penalty illegally collected from the petitioner.11.It is the contention of the petitioner that 1st respondent had forcibly taken Ex.P5 statement on 22.01.2020 from the driver of the vehicle carrying petitioner’s goods that he was told by the petitioner to stay at Weigh Bridge in Jeedimetla and that petitioner’s agent would direct the vehicle driver to deliver the goods at some places in Jeedimetla.12. It is contended that when the vehicle was checked, it was stopped near a weigh bridge in IDA Jeedimetla and that the 1st respondent had not contended that the goods were unloaded there.13. According to the petitioner, on flimsy grounds such as checking of the vehicle carrying goods at IDA Jeedimetla when goods are to be delivered at Secunderabad, tax and penalty cannot be levied. It is also contended that payment was made under pressure/coercion since the delivery schedule would be disturbed.14. According to the petitioner, Section 129 of the Act applies only to cases where it is established that there was intention or in any case possibility of evasion of tax in respect of goods transported; even if some documents such as e.way bill is missing at the time of verification, it would at the most only create a rebuttable presumption that there was intention to evade payment of tax; and if the agent is able to establish that there was no intention evade payment of tax, then Section 129 of the Act would not be attracted.15. Petitioner alleges that truck was in transit to its destination carrying all the required documents such as tax invoice and e.way bill and 1st respondent could not establish any intention on the part of the petitioner to evade payment of tax.The stand of the 1st respondent 16. Counter-affidavit was filed by 1st respondent refuting the above contentions.17. It is alleged that driver of the vehicle never mentioned about delivery at Secunderabad and Form GST MOV-06 dt.22.01.2020 was taken from the driver at 11.15 p.m. wherein the driver of the vehicle did not mention about delivery at Secunderabad.18. It is alleged that the statement of the driver of the vehicle was recorded and served on the driver as per the provisions of the Act. It is denied that the driver of the vehicle submitted the invoice/e.way bill in support of the goods movement to the point at Jeedimetla in lieu of delivery that is to be done at Secunderabad and that was why the goods vehicle was detained at IDA Jeedimetla on 22-01-2020 by issuing notice in Form MOV-06.19. It is contended by 1st respondent that the driver himself has enquired about the weigh bridge to which he was directed by the agent and also stated that the agent had asked him to stay there and he would direct the goods vehicle to the delivery point at the place located in IDA Jeedimetla. It is stated that the information was sought from the driver in Hindi and that the driver understood and agreed for the reason for detention.20. It is contended that the goods were never destined to Secunderabad because the driver did not state that the goods were to be delivered at Secunderabad.21. It is contended that after the goods were released on 25-01-2020 at 6.15 p.m., the dealer again generated another e.way bill dt.26-01-2020 at 9.45 a.m. on the same vehicle for the same value of goods without tax declaration and delivery was marked to M/s.Nanabhai Steels situated at Plot No.2, Survey No.262, Phase-I, IDA Jeedimetla, Quthbullapur, Telangana. Copy of the said e.way bill produced by the petitioner has also been filed.Reply of the petitioner to the stand of the 1st respondent 22. Reply affidavit is filed by the petitioner to the said counter-affidavit.23. Petitioner contended that the 1st respondent with an ill motive and to cover up illegal action of detaining the vehicle at IDA Jeedimetla was trying to mislead the Court by stating in counter that the goods were in transit to IDA Jeedimetla and the driver of the vehicle never mentioned about delivery at Secunderabad by placing reliance on the statement of the driver recorded on 22-01-2020.24. It is contended that both the invoice and e.way bill contained the address at Secunderabad and the goods are destined at Secunderabad only; that the driver in fact showed the address in the invoice to the respondents to inform them about the delivery of goods at Secunderabad; and the driver did not understand Hindi language used by the 1st respondent and was forced to sign the statement Ex.P5 in Form MOV-1.25. It was also denied that the driver did not submit any document such invoice/e.way bill in support of the movement of the goods and that 1st respondent’s assumption that the goods were destined to point at Jeedimetla cannot be accepted.26. It is further alleged that there was no occasion for the driver to ask the way to weigh bridge as all the vehicles carrying material from SAIL which are to be delivered at various destinations in Hyderabad/Secunderabad come in groups and stop at Jeedimetla and from there the person in charge from SAIL directs them to their destination.27. It is contended that the vehicle was checked and detained in spite of the driver carrying the invoice and e.way bill for the goods to be delivered at Secunderabad and the 1st respondent has forcefully taken the signature of the driver on the statement Ex.P5 in Form GST MOV-1 without properly explaining the contents therein.28. It is specifically denied that the driver did not understand Hindi language and he was forced to sign on the statement without understanding its contents.29. It is also contended that after release of the vehicle on 25.01.2020, petitioner was forced to forward the material for job work to M/s.Nanabhai Steels by generating a new e.way bill dt.26-01-2020 for delivery at Jeedimetla using the same vehicle as the delay occurred due to detention and there was a pressure from the customers for supply of the material. It is contended that after the job work is done, material is sent back to the petitioner and therefore there is no tax declaration on the e.way bill generated by petitioner on 26-01-2020.30. It is contended that the petitioner had regular transactions of job work done by M/s.Nanabhai Steels and the goods were received by petitioner on 25-01-2020 and they were forwarded to M/s.Nanabhai Steels for the purpose of job work by generating e.way bill on 26-01-2020.31. It is reiterated that there was no violation of the provisions of the Act by the petitioner and the 1st respondent had falsely implicated the petitioner with ulterior motive for illegal gains.32. Copies of job work challan given by petitioner to M/s.Nanabhai Steels is enclosed along with reply affidavit and it is pointed out that even the e.way bill dt.26-01-2020 issued by petitioner for delivery at M/s.Nanabhai Steels indicated that it was for job work.33. The contents of the e.way bill are not disputed by the learned Special Counsel for Commercial Taxes.34.We have noted the contentions of both sides.The consideration by the Court 35.S.107 provides an appellate remedy only against a decision/order of an adjudicatory authority.36. It is not the case of the 1st respondent that he had passed any reasoned order and communicated to the petitioner after considering petitioner’s explanation Ex.P4 dt.23.1.2020 to the Ex.P1 dt.22.1.2020 in Form GST-MOV-6 issued by him.37.Without there being any order/decision passed by the 1st respondent and communicated to the petitioner, the petitioner cannot be expected to file appeal invoking Section 107 of the TGST Act, 2017.38. So we reject the plea of the 1st respondent that the petitioner should avail the remedy of appeal under Sec.107 of the TGST Act.39. Next we shall consider the relevant statutory provisions and Circulars issued by the Central Board of indirect Taxes and Customs.40. It is important to keep in mind that CGST Act, 2017/ Telangana GST Act,2017 are very recent laws and the common businessman is admittedly having difficulty to understand these enactments and the procedures they have introduced.41. Also interpretation of taxing statutes should be done in a way to facilitate business and inter-State trading, and not in a perverse manner which would result in impediment of the same by harassing business persons.42. Section 129 of the Act states:“129. Detention, seizure and release of goods and conveyances in transit:-(1) Notwithstanding anything contained in this Act, where any person transports any goods or stores while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyances shall be liable to detention or seizure and after detention or seizure, shall be released:(a) on payment of the applicable tax and penalty equal to one hundred per cent of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent of the value of goods or twenty five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty;(b) on payment of the applicable tax and penalty equal to the fifty per cent, of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent of the value of goods or twenty five thousand rupees whichever is less, where the owner of the goods does not come forward for payment for such tax and penalty;(c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed:Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods.(2) The provisions of sub-section (6) of Section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances.(3) The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c).(4) No tax, interest or penalty shall be determined under sub- Section (3) without giving the person concerned and opportunity of being heard.(5) On payment of amount referred in sub-section (1), all proceedings in respect of the proceedings specified in sub-section (3) shall be deemed to be concluded.(6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in subsection (1) within seven days of such detention or seizure, further proceedings shall be initiated in terms of Section 130:Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer.”43. Therefore, under the above provision there is power conferred on the respondents to detain goods while in transit if there is contravention of the provisions of the Act or the Rules made thereunder.44. Section 68 of the CGST Act, 2017 / TGST, 2017 provides that the Government may require the person in-charge of a conveyance carrying any consignment of goods of value exceeding a prescribed limit to carry certain documents and devices.45.Rule 138-A of the Rules framed under the CGST Act mandates that a person in-charge of conveyance should carry invoice or bill of supply or delivery challan, and a copy of the e-Way Bill in physical form.46. Rule 138 – B permits the Commissioner or an Officer empowered by him to intercept any conveyance to verify the e-Way Bill in physical or electronic form for all inter-State and intra-State movement of goods, and Rule 138-C provides for inspection and verification of goods.47. Under Section 168 of the Act, the Central Board of Indirect Taxes and Customs had issued a Circular No.41/15/2018-GST-CBEC 2016/03/2017-GST dt.13-04-2018 laying down the procedure for inspection of conveyance for inspection of goods in movement and detention, release and confiscation of goods and conveyance and ha issued certain instructions :“… (b) The proper officer, empowered to intercept and inspect a conveyance, may intercept any conveyance for verification of documents and/or inspection of goods. On being intercepted, the person in charge of the conveyance shall produce the documents related to the goods and the conveyance. The proper officer shall verify such documents and where, prima facie, no discrepancies are found, the conveyance shall be allowed to move further. An e-way bill number may be available with the person in charge of the conveyance or in the form of a printout, sms or it may be written on an invoice. All these forms of having an e-way bill are valid. Wherever a facility exists to verify the e-way bill electronically, the same shall be so verified, either by logging on to http://mis.ewaybillgst.gov.in or the Mobile App or through SMS by sending EWBVER to the mobile number 77382 99899 (For e.g. EWBVER 120100231897).(c) … ….. …..(d) Where the person in charge of the conveyance fails to produce any prescribed document or where the proper officer intends to undertake an inspection, he shall record a statement of the person in charge of the conveyance in FORM GST MOV-01. In addition, the proper officer shall issue an order for physical verification/inspection of the conveyance, goods and documents in FORM GST MOV-02, requiring the person in charge of the conveyance to station the conveyance at the place mentioned in such order and allow the inspection of the goods. The proper officer shall, within twenty four hours of the aforementioned issuance of FORM GST MOV-02, prepare a report in Part A of FORM GST EWB-03 and upload the same on the common portal.(e) Within a period of three working days from the date of issue of the order in FORM GST MOV-02, the proper officer shall conclude the inspection proceedings, either by himself or through any other proper officer authorised in this behalf. Where circumstances warrant such time to be extended, he shall obtain a written permission in FORM GST MOV-03 from the Commissioner or an officer authorized by him, for extension of time beyond three working days and a copy of the order of extension shall be served on the person in charge of the conveyance. ….”These instructions issued by the Board are binding upon all Officers discharging under the Act.48.In Synergy Fertichem Pvt. Ltd. vs. State of Gujarat (2020 (33) G.S.T.L. 513 = [2020] 76 GSTR 81 (Guj), the Gujarat High Court referred to another Circular dt.14.9.2018 and held as follows :“94. The Central Board of Indirect Taxes and Customs, New Delhi, has issued a Circular in F. No. CBEC/20/16/03/2017-GST, dated 14.09.2018, in regard to the procedure to be followed in the Interception of conveyances for inspection of goods in movement and detention, release and confiscation of such goods and conveyances'.95. Our attention is drawn to paragraphs 3, 4, 5 and 6 of the said Circular, extracted below:-".... 3. Section 68 of the CGST Act read with rule 138A of the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as 'the CGST Rules') requires that the person in charge of a conveyance carrying any consignment of goods of value exceeding Rs. 50,000/- should carry a copy of documents viz., invoice/bill of supply/delivery challan/bill of entry and a valid e-way bill in physical or electronic form for verification. In case such person does not carry the mentioned documents, there is no doubt that a contravention of the provisions of the law takes place and the provisions of section 129 and section 130 of the CGST Act are invocable. Further, it may be noted that the non-furnishing of information in Part B of FORM GSTEWB-01 amounts to the e-way bill becoming not a valid document for the movement of goods by road as per Explanation (2) to rule 138(3) of the CGST Rules, except in the case where the goods are transported for a distance of upto fifty kilometres within the State or Union territory to or from the place of business of the transporter to the place of business of the consignor or the consignee, as the case may be.4. Whereas, section 129 of the CGST Act provides for detention and seizure of goods and conveyances and their release on the payment of requisite tax and penalty in cases where such goods are transported in contravention of the provisions of the CGST Act or the rules made thereunder. It has been informed that proceedings under section 129 of the CGST Act are being initiated for every mistake in the documents mentioned in para 3 above. It is clarified that in case a consignment of goods is accompanied by an invoice or any other specified document and not an eway bill, proceedings under section 129 of the CGST Act may be initiated.5. Further, in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, proceedings under section 129 of the CGST Act may not be initiated, inter alia, in the following situations:a) Spelling mistakes in the name of the consignor or the consignee but the GSTIN, wherever applicable, is correct;b) Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill;c) Error in the address of the consignee to the extent that the locality and other details of the consignee are correct;d) Error in one or two digits of the document number mentioned in the e-way bill;e) Error in 4 or 6 digit level of HSN where the first 2 digits of HSN are correct and the rate of tax mentioned is correct;f) Error in one or two digits/characters of the vehicle number.6. In case of the above situations, penalty to the tune of Rs. 500/- each under section 125 of the CGST Act and the respective State GST Act should be imposed (Rs. 1000/- under the IGST Act) in FORM GST DRC-07 for every consignment. A record of all such consignments where proceedings under section 129 of the CGST Act have not been invoked in view of the situations listed in paragraph 5 above shall be sent by the proper officer to his controlling officer on a weekly basis......’the questions to be determined in these cases relate to the release of consignment and the quantum of penalty, if any, to be levied at this stage, and pending adjudication."49.Interpreting the above provisions, the Gujarat High Court in Synergy Fertichem Pvt. Ltd. (1 supra) held as under :“96. As far as the determination of penalty is concerned, it is the Assessing Officer/State Tax Officer who is the competent and proper person for such determination/quantification. However, a holistic reading of the statutory provisions and the Circular noted above, indicates to me that the Department does not paint all violations/transgressions with the same brush and makes a distinction between serious and substantive violations and those that are minor/procedural in nature.”“101. We are of the view that at the time of detention and seizure of goods or conveyance, the first thing the authorities need to look into closely is the nature of the contravention of the provisions of the Act or the Rules. The second step in the process for the authorities to examine closely is whether such contravention of the provisions of the Act or the Rules was with an intent to evade the payment of tax. Section 135 of the Act provides for presumption of culpable mental state but such presumption is available to the department only in the cases of prosecution and not for the purpose of Section 130 of the Act. What we are trying to convey is that in a given case, the contravention may be quite trivial or may not be of such a magnitude which by itself would be sufficient to take the view that the contravention was with the necessary intent to evade payment of tax.102. In such circumstances, referred to above, we propose to take the view that in all cases, without any application of mind and without any justifiable grounds or reasons to believe, the authorities may not be justified to straightway issue a notice of confiscation under Section 130 of the Act. For the purpose of issuing a notice of confiscation under Section 130 of the Act at the threshold, i.e., at the stage of Section 129 of the Act itself, the case has to be of such a nature that on the face of the entire transaction, the authority concerned is convinced that the contravention was with a definite intent to evade payment of tax. We may give one simple example. The driver of the vehicle is in a position to produce all the relevant documents to the satisfaction of the authority concerned as regards payment of tax etc., but unfortunately, he is not able to produce the e-way bill, which is also one of the important documents so far as the Act, 2017 is concerned. The authenticity of the delivery challan is also not doubted. In such a situation, it would be too much for the authorities to straightway jump to the conclusion that the case is one of confiscation, i.e., the case is of intent to evade payment of tax.”(emphasis supplied)50.We are in complete agreement with the ratio laid down by the Gujarat High Court in Synergy Fertichem Pvt. Ltd (1 supra) and hold that:(i) that at the time of detention and seizure of goods or conveyance, the first thing the authorities need to look into closely is the nature of the contravention of the provisions of the Act or the Rule;(ii) the second step in the process for the authorities to examine closely is whether such contravention of the provisions of the Act or the Rules was with an intent to evade the payment of tax;(iii) a holistic reading of the statutory provisions and the Circular noted above, indicates that the Department does not paint all violations/transgressions with the same brush and makes a distinction between serious and substantive violations and those that are minor/procedural in nature; and in a given case, the contravention may be quite trivial or may not be of such a magnitude which by itself would be sufficient to take the view that the contravention was not with the necessary intent to evade payment of tax.We respectfully follow the same.51. Therefore, we shall consider firstly the nature of the contravention of the provisions of the Act or the Rules allegedly made by the petitioner.52.We are of the view that any defect, if any, in the documentation accompanying the goods for purpose of levy of tax and penalty has to be looked at also in terms of the Circular dt.13.4.2018 and Circular dt.14.09.2018 issued by the Central Board of Indirect Taxes and Customs, New Delhi.53. In the instant case, one of the grounds for detention in Form GST MOV-06 is that ‘the documents which were tendered are found to be defective’.54. But (i) which document is defective (whether it is e.way bill or the tax invoice/bill and supply/delivery challan) and (ii) why it is defective, is not mentioned.55. From the very contents of the Form GST MOV-06, wherein it is alleged that the ‘documents tendered are found to be defective’, it is clear that the documents available with the driver were actually tendered to the 1st respondent. They clearly showed that the goods were to be delivered at Secunderabad. Therefore as mentioned in the Circular dt.13.4.2018, the vehicle should be allowed to proceed further and the movement of goods cannot be stopped prima-facie.56.The explanation offered by the petitioner in reply dt.23-01-2020 to the notice in Form GST MOV-06 dt.22-01-2020 that generally material from Salem, Tamil Nadu purchased by various dealers at Hyderabad which is to be delivered at Hyderabad at various destinations do come in groups and assemble at IDA Jeedimetla; that the vehicles through Outer Ring Road reach Jeedimetla as there is no entry for heavy vehicle into the city through main roads; and the person in charge from SAIL (TN) reaches IDA Jeedimetla and directs the vehicle drivers to the respective delivery points, cannot be said to be unbelievable. The fact that the said explanations have not even considered by the 1st respondent is also glaring.57. When the petitioner denies that the driver of the vehicle carrying the goods did not understand Hindi, no reliance can be placed on the statement of the driver of the vehicle noted on 22.1.2020 that goods were to be delivered at IDA Jeedimetla.58. The other reason mentioned is that ‘the goods were being transported from Salem to Distillery Road, Secunderabad, but the vehicle is checked at IDA Jeedimetla’.59. So the question is whether ‘checking of the vehicle at IDA Jeetimetla, Hyderabad’ is ground for detention of goods under Section 129 of the Act or Rules made under the Act or as per the Circulars issued by Central Board of Indirect Taxes and Customs, GST Policy Wing.60. It is not the case of the 1st respondent that mere checking of a vehicle or it being found at a different place without anything more, is by itself a ‘taxable event’ under the CGST Act/ Telangana GST Act,2017.61. So, in our opinion, under these Acts, it is not permissible to detain a vehicle carrying goods or levy penalty on the sole ground that the vehicle is found at a wrong destination without anything more.62. Admittedly, the vehicle was found at weigh bridge, IDA Jeedimetla and it is not the case of the 1st respondent that at the time of it’s detention or check at that location, there was sale of goods being done without paying applicable tax.63. In fact there is no

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material placed on record by 1st respondent to show that any attempt was being made by petitioner to sell the goods in local market at IDA Jeedimetla on 22.1.2020 evading CGST and SGST.64. We are of the opinion that the reasons given for detaining the goods and the vehicle they were being carried in do not indicate any violation of the provisions of the Act by petitioner warranting levy of tax and penalty on the petitioner under the Act.65.In Dabur India Ltd. Vs. State of Uttar Pradesh (1990) 4 SCC 113)the Supreme Court observed that a litigant cannot be coerced by the Government to make payment of duties which the litigant is contending not to be leviable. The Supreme Court held that though the State is entitled to enforce payment and to take all legal steps, it cannot be permitted to play dirty games with the citizens to coerce them in making payments when the citizens were not obliged to make them. It also observed that if any money is due to the Government, it should not take extralegal steps to recover it.66.We are of the opinion that the detention of the vehicle at IDA Jeedimetla in spite of the vehicle carrying tax invoice and the e.way bill is in violation of the provisions of the Act, in particular Rule 68 of the Rules framed under the Act and the Circulars dt.13.4.2018 and 14.9.2018 of the Central Board of Indirect Taxes and Customs which are binding on the 1st respondent and that the 1st respondent was not justified in collecting tax and penalty from the petitioner.67.We are also of the opinion that the 1st respondent cannot rely on the fact that after release of goods on 25-01-2020 at 6.15 p.m., the petitioner generated another e.way bill dt.26-01-2020 on the same vehicle for the same value of the goods and marked it to be delivered to M/s.Nanabhai Steels in IDA Jeedimetla, Telangana.68. This is because the very e.way bill dt.26-01-2020 shows that it is only for job work purpose and not intended by way of sale because after the job work is done, the material would be sent back to the petitioner.69. Also it is not in dispute that petitioner waited for two days after submitting explanation to the show-cause notice for an order to be passed by the 1st respondent, and when the 1st respondent failed to do so and also did not release the vehicle and the goods, the petitioner paid the tax and penalty under protest on 25.01.2020 and got released the goods. So there was no voluntary payment of tax and penalty by petitioner for the 1st respondent to plead any estoppel against the petitioner.70. Accordingly, the Writ Petition is allowed; the action of the 1st respondent in detaining the vehicle carrying the goods purchased by petitioner on 22-01-2020 and forcing the petitioner to pay on 25-1- 2020 a sum of Rs.9,40,618/- towards tax and penalty is declared as illegal, arbitrary and violative of Article 14 and 265 of the Constitution of India apart from Article 301 of the Constitution of India and also the provisions of the Act and Rules made thereunder. Accordingly, the 1st respondent is directed to refund the above amount within six (06) weeks together with interest @ 7% p.a. from 25.01.2020 till date of payment. No costs.71. Consequently, miscellaneous petitions, pending if any, shall stand closed.
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