Satyendra Goods Transport Corp. Thru. Prop. Bhuwan Kohli & A Versus State of U.P. Thru. Prin. Secy. Tax & Registration & Others
GST
2018 (4) TMI 807 – ALLAHABAD HIGH COURT – 2018 (16) G. S. T. L. 602 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 13-4-2018
Misc. Bench No. 5536 of 2018
GST
Hon'ble Prashant Kumar And Hon'ble Rajan Roy, JJ.
For the Petitioner : Pradeeo Agrawal
For the Respondent : C.S.C.,A.S.G., Dr Deepti Tripathi
ORDER
( Per: Rajan Roy, J. )
Heard Sri Pradeep Agarwal, learned counsel for the petitioner, Sri Rahul Shukla, learned Addl. C.S.C. for the opposite party nos.1, 3 and 4, Dr. Deepti Tripathi, learned counsel for the opposite party no.2.
This is a writ petition under Article 226 of the Constitution of India seeking a writ of certiorari quashing the orders of seizure under section 129(1) as well as imposition of tax and penalty under section 129(3) of the U.P. Goods and Services Tax Act 2017 (hereinafter referred as ''U.P.G.S.T
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e writ petition. It is said that Integrated Goods and Services Tax (hereinafter referred as ''I.G.S.T.') at the rate of 28% was duly paid on the said inter-state supply of goods. During the course of movement of these goods through the State of U.P. the consignment was intercepted at Lucknow on 17.12.2017 and the goods as well as documents were checked, whereupon, a T.D.F. Form was presented, which, on examination, was found to be related to another vehicle and another transportation pertaining to different goods. Accordingly, the truck alongwith the goods was seized on the same date, as, it was not carrying genuine and original T.D.F. Form. Proceedings under section 129 of the U.P.G.S.T. Act 2017 were undertaken against the truck-driver Mohammad Alamgir i.e. petitioner No.2. After issuance of notice of seizure on 17.12.2017 a show-cause notice under section 129(3) of the U.P.G.S.T. Act 2017 was issued to the truck-driver on the same date. A reply to the said notice was sub
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conveyance carrying any consignment of goods of value exceeding such amount as may be specified, to carry with him such documents and such devices as may be prescribed. This prescription is contained in Rule 138 of the Central Goods and Services Tax Rules 2017 (hereinafter referred as ''C.G.S.T. Rules 2017'), but, no notification had been issued by the Central Government under the said rule specifying the documents that a person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage, therefore, the rule was practicallty inoperative and there was no requirement of carrying any such document on the relevant date i.e. 17.12.2017. The invoice and other documents which were being carried were sufficient for the purpose of transportation, especially as, they revealed that it was an inter-State supply of goods and the I.G.S.T. at the rate of 28% had already been paid.
As regards the allegation of a fabricated
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ts being applicable and there being a notification dated 21.7.2017 under Rule 138 of the U.P.G.S.T. Act 2017 prescribing a T.D.F. Form in case of transportation of taxable goods valuing Rs. 5000.00 or more from a place outside Uttar Pradesh to a place outside the State i.e. in the event of inter-State trade and the same not having been complied, action of seizure and imposition of penalty under section 129 of U.P.G.S.T. Act 2017 was clearly in accordance with law and did not suffer from any error and it did not warrant any interference by this Court.
A process for initiation of a new indirect taxation regime was put into motion by the Constitution (101st Amendment) Act 2016 dated 8.9.2016 by which Articles 246-A, 269-A, 279-A and other provisions of the Constitution were amended. As per the amended Article 269-A, which pertains to levy and collection of Goods and Services Tax in the course of inter-state trade or commerce such tax shall be levied and collected by the Government of Ind
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.G.S.T. Act 2017 applies, whereas, in matters of intra-State trade and commerce the ''C.G.S.T. Act 2017' and the State Goods and Services Tax Acts, which in this case is ''U.P.G.S.T. Act 2017', apply.
Section 3 of the I.G.S.T. Act 2017 provides that the Board may appoint such Central Tax Officers as it thinks fit for exercising powers under this Act. There is no dispute about the fact that by virtue of section 4 of the I.G.S.T. Act 2017 the officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorized to be the proper officers for the purposes of the said Act, subject to such exceptions and conditions as the Government shall, on the recommendations of the Council by notification, specify. Similarly for enforcement of C.G.S.T. Act 2017 by virtue of section 6 thereof State Authorities under U.P.G.S.T. Act 2017 are also empowered to enforce C.G.S.T. Act 2017.
It is also not in dispute that by virtue
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(1) is intercepted by the proper officer at any place, he may require the person in charge of the said conveyance to produce the documents prescribed under the said sub-section and devices for verification, and the said person shall be liable to produce the documents and devices and also allow the inspection of goods.”
As would be evident from its reading, the documents which the Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified, are such, as may be prescribed. Now this prescription has been made under Rule 138 of the C.G.S.T. Rules 2017 which reads as under:
“138. E-way rule
Till such time as an E-way bill system is developed and approved by the Council, the Government may, by notification, specify the documents that the person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage.”
As would be evident from a readi
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nt as is referred in section 68 of the C.G.S.T. Act 2017 and Rule 138 of the C.G.S.T. Rules 2017. In fact, Dr. Deepti Tripathi, learned counsel for the Government of India made a categorical statement on the basis of instructions that T.D.F. Form was not required to be carried for movement of inter-State goods to which the I.G.S.T. Act 2017 applies. In fact, as per Dr. Deepti Tripathi, learned Advocate appearing for the Government of India, C.G.S.T. Rules 2017 were amended on 30th August 2017 and vide another notification dated 29.12.2017 this amendment containing the E-way Bill system was to come into force from 1.2.2018, but, the notification dated 29th December 2017 was rescinded by a subsequent notification dated 2.2.2018. Thereafter the notification dated 7th March 2018 has been issued regarding E-way Bill System.
Thus, E-way bill system has been prescribed only recently by a notification of the Government of India dated 7th March 2018 whereby Rule 138 of the C.G.S.T. Rules 2017
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ter-State movements of goods, but, in our view it is only the Government of India which is empowered to issue such a notification in respect of inter-State trade under section 20(xv) of the I.G.S.T. Act 2017 read with section 68 of the C.G.S.T. Act 2017 and Rule 138 of the C.G.S.T. Rules 2017 made thereunder, as, the term ''Government' used in Rule 138 is defined in section 2(53) of the C.G.S.T. Act 2017 to mean the ''Central Government', just as, under section 2(9) of the I.G.S.T. Act 2017 ''Government' means '' the Central Government'. Moreover, with respect to Goods and Service Tax in relation to inter-State Trade the Parliament alone has the authority to legislate as would be evident from the 101st Amendment to the Constitution.
In this view of the matter we are of the considered view that on the relevant date i.e. 17.12.2017 there was no requirement of carrying T.D.F. Form-1 in the case of an inter-State supply of goods. In fact on
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ly the Central Government has the power under section 20(xv) of I.G.S.T. Act 2017 read with section 68 of C.G.S.T. Act 2017 and Rule 138 of C.G.S.T. Rules 2017.
The fact that the authorities under the State Act were empowered to exercise the powers under the C.G.S.T. Act 2017, assuming it to be so, is inconsequential, as, it is not their jurisdiction to exercise power of seizure which is under question, but, the manner in which they have exercised it on the basis of an inapplicable provision of law, as, they have proceeded on the presumption that T.D.F. Form-1 prescribed under a notification issued by the State Government under Rule 138 of the Rules made under the U.P.G.S.T. Act 2017, was required to be carried, which is not the requirement in law. For this very reason the judgment dated 29.1.2018 passed by a Coordinate Bench of this Court in Writ Tax No.95 of 2018 does not apply to the instant case, as the challenge therein was to the very power of the State Authorities under U.P.G.S
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We are supported in our view not only by the statement made by Dr. Deepti Tripathi as recorded hereinabove, but also by the judgment of the Kerala High Court on the subject as reported in ASCICS Trading Company v. Assistant State Tax Officer & anr., 2017 NTN (Vol.65) 145, wherein it has been held as under:
“3. To a pointed query as to the power of the State Government to detain goods for alleged non compliance with the requirement of carrying the prescribed documents under the I.G.S.T. Act, which is the basis for the detention in Ext. P5 notice impugned in the writ petition, the learned Government Pleader would take me through the provisions of the IGST Act, CGST Act and SGST Act and in particular, the provisions of Section 4 and Section 20 of the IGST Act and Section 6 of the CGST Act read with Rule 138 of the CGST Rules as amended by notification No.27/2017 – Central Tax for the purposes of pointing out that, although the power to prescribe the documents that are to accompany the
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now, it was an inter-State trade and there is nothing on record to show otherwise. The assertion that I.G.S.T. had already been paid, has also not been denied by the opposite parties nor that both the consignor and consignee are registered dealers. Moreover, the requisite details having been mentioned in the invoice etc. the same would be verified at the point of destination and accordingly the matter would be scrutinized as regards the liability of Tax. The notification dated 21.7.2017 issued by the State Government under Rule 138 of the U.P.G.S.T. Rules 2017 made under section 164 of the U.P.G.S.T. Act 2017 was clearly inapplicable for the reasons already mentioned earlier. There was no intent to evade tax.
As regards the question of alleged interpolation or fabrication of the T.D.F. Form submitted by the driver, Sri Agarwal has given an explanation before us, but, if it is so, the concerned authorities are at liberty to take such action as may be permissible in law, but this does
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