Sakeel Versus State Tax Officer,
GST
2018 (9) TMI 609 – RAJASTHAN HIGH COURT – 2018 (19) G. S. T. L. 419 (Raj.)
RAJASTHAN HIGH COURT – HC
Dated:- 4-7-2018
S. B. Civil Writs No. 13485/2018
GST
MR. SANJEEV PRAKASH SHARMA J.
For Petitioner(s) : Mr. Alkesh Sharma, Adv. With Mr. Sarvesh Jain, Adv.
For Respondent(s) : Mr. RB Mathur, Adv. with Ms. Tanvi Sahai, Adv.
Judgment / Order
1. It is stated by learned counsel for the petitioner that show cause notice was issued to the petitioner in terms of Section 129 of the Rajasthan Goods and Service Tax, 2017. However, while the petitioner submitted detailed representation pointing out that the goods and the bag containing the receipts had been stolen, without taking into consideration the averments made in the representation, the respondents have proceeded to pass order under Section 130 mentioning therein that the petitioner has neither appeared nor submitted any objection although the objections are already on record.
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ayable 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 of 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,
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eciate in value with passage of time, the said period of seven days may be reduced by the proper officer.”
4. On reading the aforesaid provision, it is apparent that while the power exists with the respondents to take action under Section 129(3) of the Act and thereafter to proceed under Section 130 of the Act, before taking any such decision, the concerned person has to be given an opportunity of being heard which inherently means that the submissions which the concerned person may take up while filing his objections have to be examined and a speaking order has to be passed giving out reasons for not accepting the objections. It is to be noted that once such an order has been passed, it can be challenged by the aggrieved person by filing an appeal under Section 107 of the Act. 5. However, in the present case, this Court finds that the requirement of Section 129 (4) & (5) of the Act has not been followed and the concerned authority has failed to take notice of the objections and it ca
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ed are perishable and are lying with the respondents since May, 2015. The petitioner is ready to security/bank guarantee/security bond in lieu of the goods.
9. Learned counsel for the respondents submits that it would be very difficult to get the amount recovered if the security bond is allowed to be accepted and the truck and goods can be released on submission of bank guarantee.
10. Taking into consideration the prayer made above, this Court finds that Rule 140 of the Central Goods and Service Tax Rules, 2017 provides as under:-
“140. (1) The seized goods may be released on a provisional basis upon execution of a bond for the value of the goods in FORM GST INS-04 and furnishing of a security in the form of a bank guarantee equivalent to the amount of applicable tax, interest and penalty payable.
Explanation.- For the purposes of the rules under the provisions of this Chapter, the “applicable tax” shall include central tax and State tax or central tax and the Union territory tax,
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