2018 (11) TMI 704 – ALLAHABAD HIGH COURT – 2018 (19) G. S. T. L. 43 (All.) – Seizure of goods alongwith vehicle – e-way bill-01 has not been produced along with other documents – Held that:- After issuance of notification no. 177 dated 06.02.2018, the notification no.138 dated 30.01.2018 was rescinded which made effective notification no.1359 (4th Amendment) to GST Rules, 2017 with effect from 01.02.2018.
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The goods were coming from Ahmadabad and are to be delivered at Meerut. Both the parties situated at Ahmadabad and Meerut are registered with their respective Assessing Authority. Goods were accompanied with all the requisite documents including Gujarat e-way bill dated 21.03.2018, therefore, there was no ground to hold that the goods were coming in contravention of the provision of GST Act/Rule and the intention of the petitioner was to evade the payment of Tax – the order of seizure passed by the respondent no.4 is wholly illegal, arbitrary as such, is clearly against the int
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shing the notices dated 25.03.2018 issued u/s 129(3) of UPGST Act by Respondent No.4. C. Issue writ order or direction in the nature of certiorari quashing Commissioner Circular No.2899 dated 06.02.2018 being ultra vires to UPGST Act, 2017. D. Issue any other Writ, Order or Direction in favour of the petitioner which this Hon'ble Court deems fit in the facts and circumstances of the case. E. Award cost of the petition to the petitioner. 3. The brief facts of the case are that the petitioner is a company registered under the Companies Act as well as under the provisions of GST Act, situated at Ahmadabad, Gujarat having supplied of printed laminated rolls worth ₹ 7,84,564/and 4,37,588/through two separate invoices in which the Integrated Goods and Service Tax (IGST) has been charged @ of 18%. The goods aforesaid proceeded through a Truck No. DL-1GB-7369 under Consignment Note No.A 89423 dated 21.03.2018 which has been issued by the Transporter and the seller of Gujarat has gene
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produced along with other documents, therefore, there is a presumption that the goods are transported inside of State of U.P. with intention to evade payment of tax. The seizing authority has asked the petitioner to deposit the tax and has further proceeded to issue a notice under Section 129(3) of the Act by which the respondent no.4 has directed the petitioner to furnish the Bank guarantee to the value of proposed amount of ₹ 11,86,253/. This demand has been made by the respondent no.4 for release of the seized goods and vehicle. 6. Learned counsel for the petitioner has submitted that in exercise of power under Rule 138 of UPGST Rules, 2017 Notification No. KA-NI-1014/XI9(52)/17-UPGST Rules-2017-Order-(31)-2017 Lucknow dated 21.07.2017 specifying Form e-way bill-01, e-way bill-02, e-way bill-03 and TDF will be carried for supply/movement/transit of Interstate/ Intra state goods. He has further submitted that in exercise of power under Section 164 of UPGST Act, 2017 read with
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ated under this rule or under rule 138 of GST of any State shall be valid in every State and Union Territory. 9. He further submitted/placed that another notification no.177 dated 06.02.2018 was issued by which the Governor was pleased to rescind notification no.138 dated 30.01.2018 with effect from the date of issuance of such notification. From perusal of aforesaid notifications, it is apparent that Notification no.1014 dated 21.07.2017 was superseded by notification no.1359 dated 20.09.2017 by which UPGST (4th amendment) Rules 2017 was introduced and made effect w.e.f. 01.02.2018 vide notification no. 138 dated 30.01.2018. Accordingly, the initial notification no.1014 by which e-way bill-01, e-way bill-02, e-way bill-03 and TDF were introduced stand rescinded. 10. We have noticed that after issuance of notification no.177 dated 06.02.2018; notification no.138 dated 30.01.2018 was rescinded which made effective Notification No. 1359 (4th Amendment to GST Rules, 2017) w.e.f. 01.02.201
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Commissioner to issue instructions for proper implementation of the Act or rules. 14. According to the counsel for the petitioner, the Commissioner of State Tax has no power to issue the circular in exercise of power under Section 168 of the Act. The Commissioner, therefore, cannot issue notifications and directions which are 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. 15. 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. He has further submitted that the circular issued by the Commissioner cannot revive the notification. In the present case the Circular no. 1014 dated 21.07.2017 which was already amended by another notification No. 13
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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 dated 21.07.2017 by which e-way bill-01, e-way bill-02, e-way bill-03 and TDF (Transit Declaration Form) was introduced stands rescinded. 19. We have noticed that after issuance of notification no. 177 dated 06.02.2018, the notification no.138 dated 30.01.2018 was rescinded which made effective notification no.1359 (4th Amendment) to GST Rules, 2017 with effect from 01.02.2018. 20. In view of the aforesaid facts the effect and operation of the notification no.1359 dated 20.09.2017 stands rescinded. 21. Now coming to the facts of the present case, we noticed that goods were coming from Ahmadabad and are to be delivered at Meerut. Both the parties situated at Ahmadabad and Meerut are registered with their respective Assessing Authori
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