2018 (5) TMI 761 – ALLAHABAD HIGH COURT – 2018 (14) G. S. T. L. 168 (All.) – Detention of goods with vehicle – interstate movement of goods – the Transit Declaration Form has been presented in pursuance of the insistence by respondent no.3 – goods as well as vehicle seized on the ground that the goods were being transported from outside the state of U.P. without the Transit Declaration Form, which is in violation of provision of UPGST Act – relevant date.
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Held that: – 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 CGST Rules, 2017 has been amended and other Rules have been incorporated in this regard. These amendments are to come into force from a date to be specified by the Central Government which is specified w.e.f. 01.04.2018 – the fact of the matter is that on the date of incident i.e. 24.03.2018 neither there was any E-way Bill System nor any notification by the Central Governme
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ri and Hon'ble Ashok Kumar,JJ. For the Petitioner :- Nishant Mishra JUDGEMENT (Per: Hon'ble Ashok Kumar, J.) 1. Heard Sri Nishant Mishra assisted by Sri Vipin Kushwaha, learned counsel for the petitioner and Sri C.B. Tripathi, learned Standing Counsel for the respondents-State. 2. With the consent of learned counsel for the parties, writ petition is finally disposed of without calling the counter affidavit. 3. The instant writ petition has been filed by the petitioner for the following relief; A. Issue a writ, order or direction in the nature of certiorari quashing the impugned seizure order dated 28.03.2018 and consequential notice dated 28.03.2018. (Annexure-1 & 2) passed by respondent no.3 B. Issue a writ, order or direction in the nature of mandamus commanding Respondent No.3 and his agents, to release the Vehicle No. UP-12AT-1460, without insisting for deposit of any amount of tax/penalty; C. Issue a writ, order or direction declaring that Notification No.1014 dated 21
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ryana, it generated e-way bill prescribed under Central Goods and Service Tax, Rules (hereinafter referred as the 'CGST') after uploading of the relevant details of the aforesaid transactions. The said e-way bill has been downloaded from the official portal on 24.03.2018. The said e-way bill indicates the time and the date of generation as 24.03.2018 at 8.38 P.M. giving all requisite details therein. The said goods were booked for transportation from Faridabad to Haridwar through a transporter namely DEV Transporter, Muzaffar Nagar against goods receipt (GR) no. 241 dated 24.03.2018. The aforesaid goods are loaded at Faridabad and transported through truck no. U.P.-12AT-1460. 6. Learned counsel for the petitioner has submitted that when the aforesaid vehicle in question was crossing through Ghaziabad, it was intercepted/detained by the Assistant Commissioner, State/Commercial Tax, Mobile Squad-VIIth Unit, Ghaziabad on 25.03.2018 at about 12.05 P.M. When the petitioner received
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ce to the seizure order, has issued a show cause notice dated 28.03.2018 under Section 129(3) of the UPGST Act directing the petitioner to appear before him on 04.04.2018 and to explain as to why tax @ 18% amounting to ₹ 63,262/- and equivalent amount of penalty may not be imposed. 9. Learned counsel for the petitioner has submitted that there is no requirement for generation or downloading of the Transit Declaration Form-I for the goods crossing/passing through the State of U.P. He has further submitted that since the TDF-I is not required under the law, the seizure of goods and the vehicle on the ground of non availability of TDF-I is wholly illegal and without jurisdiction. 10. It is further submitted that in exercise of power conferred by Rule 138, as originally enacted, State Government issued Notification No.1014 dated 21st July, 2017 specifying the following documents in clause (i) to (iv) to be carried while the goods are in movement or in transit storage- Clause Document
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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 India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Service Tax council. Import within the territory of India was included within the meaning of the term "Inter-State Trade or Commerce" and in respect of it tax, as aforesaid, would be levied and collected by the Government of India. 12. In pursuance to the aforesaid 101st Amendment of the Constitution three enactments were passed by the Parliament, i.e. the Integrated Goods and Services Tax Act 2017; the Central Goods and Services Tax Act 2017; the Union Territory Goods and Services Tax Act 2017 (hereinafter referred as ''UTGST Act'). In addition to the aforesaid three
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fication, specify. Similarly for enforcement of CGST Act 2017 by virtue of section 6 thereof State Authorities under UPGST Act 2017 are also empowered to enforce CGST Act 2017. 15. It is also not in dispute that by virtue of section 20(xv) of the ''IGST Act, 2017' the provisions of ''CGST Act, 2017' apply in respect of matters covered by the IGST Act, 2017 on the subject of inspection, search, seizure and arrest. Chapter XIV of the CGST Act, 2017 deals with inspection, search, seizure and arrest. While section 67 of CGST Act, 2017 deals with the power of inspection, search and seizure, section 68 deals with inspection of goods in movement and it is this provision with which we are primarily concerned. It reads as under: "68. Inspection of goods in movement (1) 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 to carry with him such documents and such devices a
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ification, 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." 17. As would be evident from a reading of the aforesaid rule, it refers to an E-way bill System which is to be developed by the GST Council and it provides for an interim arrangement by the Government till an E-way Bill System is so developed and approved. The words "Government" used therein is defined in Section 2(53) of CGST Act, 2017 to mean the "Central Government". It is not in dispute that on the date of interception of the vehicle in question E-way Bill System had not been developed, therefore, the documents which were required to be carried during movement of any consignment of goods were those which may have been notified by the Central Government under Rule 138 of the CGST Rules, 2017, as, by virtue of Section 20(xv) thereof, it is this rule which is applicable to matters perta
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tem. 18. 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 CGST Rules, 2017 has been amended and other Rules have been incorporated in this regard. These amendments are to come into force from a date to be specified by the Central Government which is specified w.e.f. 01.04.2018. 19. Be that as it may, the fact of the matter is that on the date of incident i.e. 24.03.2018 neither there was any E-way Bill System nor any notification by the Central Government under Rule 138 of the CGST Rules, 2017 requiring the carrying of a TDF Form or any other such document in the course of inter-State supply/movement of goods, as such, the very basis for passing the impugned orders and taking action against the petitioner as impugned herein is apparently erroneous and illegal. In view of the above, it cannot be said that there was any intent to evade tax. 20. As regards the contention of Sri C.B. Tripath
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f the matter, we are of the considered view that on the relevant date i.e. 24.03.2018, there was no requirement of carrying TDF Form-1 in the case of an inter-State supply of goods. In fact on the relevant date there was no prescription of the documents to be carried in this regard under Rule 138 of the CGST Act, 2017, accordingly, the seizure and penalty imposed upon the petitioners based on the notification dated 21.7.2017 issued under Rule 138 of the UPGST Act 2017, which was not applicable, is clearly illegal. 22. Cross-empowerment under section 4 of IGST Act, 2017 and section 6 of CGST Act, 2017 merely means that State Authorities empowered under the UPGST Act, 2017 can also enforce the provisions of CGST Act, 2017 or IGST Act, 2017, but it does not mean that they can apply the provisions of UPGST Act, 2017 or Rules made thereunder to cases of inter-State trade in violation of section 20(xv) of IGST Act, 2017. It does not mean that the State Government can issue a notification und
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x 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 UPGST Act, 2017 to seize goods involved in inter-state supply. Here the question is whether petitioner was required to carry TDF Form I or not, which we have answered in the negative. 24. As regards the provisions of Section 129 UPGST Act, 2017 under which the impugned action has been taken, the same is not applicable to an inter-State trade or commerce. By virtue of Section 20 of the IGST Act, 2017, it is section 129 of CGST Act, 2017 that would apply, but this is not the ground on which we are invalidating the impugned action, as, if it is traceable to the aforesaid provision of CGST Act, 2017 which is pari materia to the State Act, then mere wrong mentioning of a provision would be too technical a ground for interference. We are invalidating the action on account of absence of any notification by the Central Government under Rule 138 of CGST Rules, 2017 a
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/2017 – Central Tax for the purposes of pointing out that, although the power to prescribe the documents that are to accompany the transportation of goods in the course of interstate trade is conferred on the Central Government, the Central Government has, till date, not notified the documents that have to be carried by a transporter of the goods in the course of interstate movement. Under the said circumstances, and finding that neither the State Legislature nor the State Government would have the power to make laws/rules to govern interstate movement of goods in the course of trade, and for the purposes of levy of tax, I am of the view that detention in Ext.P.5, for the sole reason that the transportation was not accompanied by the prescribed documents under the IGST Act/CGST Act/CGST Rules, cannot be legally sustained. I therefore, allow the writ petition by making the interim order absolute." 26. Furthermore, we find that alongwith the consignment of goods the driver was carry
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s covered by the Integrated Goods and Services Tax Act, 2017 and as per section 20 (xv) thereof, in matters of inspection, search, seizure and arrest, provisions of the Central Goods and Services Tax Act, 2017 were applicable. As per section 68 of the CGST Act, 2017, inter alia, Government may require, the person in charge of a 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, 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 practically inoperative and there was no requirement of carrying any such document. The invoice and other documents which were being c
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not in consonance with the Act and Rule or the notifications. He has further submitted that the Commissioner is not expected to perform the legislature function and issue the instruction or the circular on something contrary to the provision which are available in the Act or Rule. 30. Learned counsel for the petitioner, therefore, has submitted that the Commissioner by way of circular dated 06.02.2018 usurped the rule making power of the legislature. It is further submitted that the circular issued by the Commissioner cannot revive the notification. In the present case the Notification no. 1014 dated 21.07.2017 which was already amended by another notification No. 1359 dated 20.09.2017 has no legal value. The counsel for the petitioner has challenged the validity of the circular dated 06.02.2018 and has submitted that the same is ultra vires to UPGST Act and Rules 2017. 31. On the contrary, Sri C.B. Tripathi, learned counsel representing the State has submitted that the circular is no
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d no substance in the submission of learned counsel for the State. 34. We noticed that the notification dated 21.07.2017 has already been amended by the notification No. 1359 dated 20.09.2017 and on account of aforesaid amendment, the UPGST (4th Amendment) Rules, 2017 was introduced and made effective with effect from 01.02.2018 vide notification No.138 dated 30.01.2018, therefore, in our opinion, the initial notification no.1014 by which e-way bill-01, e-way bill-02, e-way bill-03 and TDF (Transit Declaration Form) was introduced stands rescinded. 35. We are in agreement with the submission of learned counsel for the petitioner that with effect from 01.02.2018 there was no requirement to download the Transit Declaration Form-I as the same was not required under the law after the aforesaid cut of date. 36. There is no doubt with regard to transaction in question as we find that the Integrated Goods and Service Tax (IGST) has been charged by the petitioner in its invoice and when the IG
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