M/s. Harley Foods Products Pvt. Ltd. Versus State Of UP And 3 Others
GST
2018 (11) TMI 704 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 43 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 5-4-2018
WRIT TAX No. 584 of 2018
GST
Krishna Murari, and Ashok Kumar, JJ.
Counsel for Petitioner: Suyash Agarwal
Counsel for Respondent: C. S.C.,A.S.G.I.
(Per: Hon'ble Ashok Kumar, J.)
1. Heard Sri Suyash Agarwal, learned counsel for the petitioner, Sri C.B. Tripathi, learned Special Counsel for the State and Sri Anant Kumar Tiwari, learned counsel representing the Union of India.
2. 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 seizure memo dated 25.03.2018 passed under Section 129(1) UPGST Act by Respondent no.4.
B. Issue a Writ, Order or Direction in the nature of Certiorari quashing the notices dated 25.03.2018 issued u/s 129(3) of UPGST Act by Respondent
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arat GST for outward journey from Ahmedabad to Meerut, U.P. The vehicle loaded with the goods proceeded from Ahmedabad and reached near Baghpat, U.P. at about 3.30 P.M. on 24.03.2018, the same has been intercepted/detained by the respondent no.4, the Assistant Commissioner, State Tax, Mobile Squad, Unit Baghpat and a detention notice has been issued in the name of the truck driver, in which, it has been mentioned that e-way bill-01 has not been produced at the time of interception whereas other documents are placed during the course of verification.
4. A seizure order dated 25.03.2018 has been passed under Section 129(1) of UPGST Act in the name of the driver of the vehicle by which the authority has estimated the value of goods seized at Rs. 10,05,214/.
5. The sole ground for seizure of the goods and vehicle is mentioned by the respondent no.4 that at the time of interception e-way bill-01 has not been produced along with other documents, therefore, there is a presumption that the g
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ding UPGST Rules 2017-Order(45)-2017 dated 20.09.2017. At Clause 10 of the said Notification, Rule 138 was substituted. He has submitted that another notification No.138 dated 30.01.2018 was issued in exercise of power under Section 164 of UPGST Act which provided that serial no.10 and 11 of notification no.1359 dated 20.09.2017 will come into force w.e.f. 01.02.2018.
7. Counsel for the petitioner has brought to our notice that after coming into force notification no.1359 dated 20.09.2017 w.e.f. 01.02.2018, the notification no.1014 dated 21.07.2017 stands superseded by notification no.1359 dated 20.09.2017.
8. He has submitted that a notification no.155 dated 31.01.2018 was issued under Section 164 of UPGST Act by which again UPGST Rules were amended. Amendment no.12 provides for amended rule 138 which shall come into effect w.e.f. 01.02.2018. Sub-Rule (13) of Rule 138 provides that e-way bill be generated under this rule or under rule 138 of GST of any State shall be valid in every
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s 2017) also stand rescinded.
11. To sum and substance from the above notifications are that neither Notification no.1014 dated 21.07.2017 nor notification no.1359 dated 20.09.2017 (4th amendment to GST Rules, 2017) was effective after 06.02.2018; as such the various e-way bills and TDF introduced under UPGST lost their validity.
12. On 06.02.2018 to validate the same, the Commissioner Commercial Tax U.P. issued a Circular No.2899 dated 06.02.2018 by which it made effective notification no.1014 dated 21.07.2017 which was already rescinded by notification no.138 dated 30.01.2018.
13. It is pertinent to mention here that Section 166 of UPGST Act empowers the State Government to issue notifications, which shall be laid before state legislature. Similarly Section 164 of the Act also empowers the State Government to formulate rules for carrying out the provisions of the Act. Section 168 of the Act empowers the Commissioner to issue instructions for proper implementation of the Act or rul
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ity of the circular and has submitted that the same is ultra vires to UPGST Act and Rules 2017.
16. On the contrary, Sri C.B. Tripathi, learned counsel representing the State has submitted that the circular is nothing but a clarification to all subordinate authorities to act by applying the notification No.1014 dated 21.07.2017 though is amended but still is applicable. He has further submitted that the present proceedings are summary proceedings, therefore, the petitioner be relegated to deposit the impugned demand and to participate in the penalty proceedings and in case if the petitioner succeeded before the seizing authority, the amount if so deposited in compliance of the seizure/penalty will be refunded.
17. We find no substance in the submission of learned counsel for the State.
18. On the other hand, 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 Am
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