M/s Modern Traders Versus State Of UP And 2 Others
GST
2018 (5) TMI 1030 – ALLAHABAD HIGH COURT – 2018 (14) G. S. T. L. 184 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 9-5-2018
Writ Tax No. 763 of 2018
GST
Hon'ble Krishna Murari And Hon'ble Ashok Kumar, JJ.
For the Petitioner : Nishant Mishra
For the Respondent : C.S.C.
ORDER
Heard Sri Nishant Mishra, learned counsel for the petitioner and Sri Jagdish Mishra, learned standing counsel.
The instant writ petition has been filed by the petitioner by which the petitioner has sought the following relief :
“A. Issue a writ, order or direction in the nature of certiorari quashing the impugned seizure order and consequential order under Section 129(3) (Annexure 1 and 2) passed y respondent no.3 on the same i.e. 5.5.2018.
B. Issue a writ, order or direction in the nature of mandamus commanding respondent no.3 and his agents, to release the Vehicle No. UP13AT-1153, without insisting for deposit of any amount of
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accompanied with E-way bill. The respondent no.3 has proceeded for inspection/physical verification of the goods and for the same he has issued verification report in part-A and part-B on 5.5.2018 itself wherein no time has been mentioned. When the proprietor of the petitioner's firm has received the information about interception of the vehicle, he has immediately generated E-way bill on 5.5.2018 at 11.55 a.m. and tried to contact the respondent no.3, however, he was informed that the respondent no.3 will be available after 2 p.m. and thereafter at 2.30 p.m. the aforesaid E-way bill was furnished.
The submission of the learned counsel for the petitioner is that though the petitioner has furnished the E-way bill before the respondent no.3 prior to the seizure proceedings and seizure order, but the respondent no.3 has passed the seizure order. Again without mentioning the time of passing the seizure order a consequential notice under Section 129(3) of the UPGST Act (hereinafter ref
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a seizure order and consequential penalty order has been passed. Counsel for the petitioner has submitted that once E-way bill was generated after interception of the goods, but before seizure order is passed, then the goods cannot be seized as is held by this Court in the case of Axpress Logistics India Pvt. Ltd. (supra). Counsel for the petitioner has also relied upon the circular dated 13.4.2018 issued by the Central Board of Direct Tax and Custom distinguish between interception and detention and hence in the instant case since the petitioner has furnished the E-way bill prior to detention and seizure of goods, no seizure order can legally be passed nor penalty can be asked.
We have heard learned counsel for the parties and perused the documents enclosed along with the writ petition.
We find substance in the submission of the learned counsel for the petitioner that while issuing the interception memo the respondent no.3 has mentioned the time being 1.30 a.m. on 5.5.2018 and direc
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