2018 (12) TMI 138 – KERALA HIGH COURT – TMI – Detention of goods with vehicle – goods detained on the ground Part B of the accompanied e-way bill has not completed – Section 129(3) of GST Act – Held that:- The petitioner may not insist on the provisional release of the goods, but contest the matter before the State Tax Officer. It may then invite an order under Section 129 and 130. Then, Perhaps, every plea including those provided under Section 126 may be available. But if the petitioner desires to have the interim release of the goods, there is no escape from Section 129. As with Section 74, it is evident that the provision concerns the assessment but not transport and its interception, much less the detention and the provisional release.
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Exts.P5 to P7 notices of detention do not suffer from any legal infirmity – petition dismissed. – WP (C). No. 35665 of 2018 Dated:- 29-11-2018 – MR DAMA SESHADRI NAIDU, J. For The Petitioner : ADV. SMT. S. SUJINI For The Respondent : DR THU
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ounsel, mentioned the matter and submitted that the petitioner never consented. It wanted to have an order on merits. So I recall the judgment, dated 01.11.2018. 4. Smt. Sujini has submitted that the petitioner is only a transporter, and it receives paltry sums never exceeding 2,000/- rupees as transport charges. According to her, Section 129 in its entirety does not apply to the transporter; it may affect either the consignor or the consignee, at best. As the consignor and the consignee have insisted that the transporter has the obligation of reaching the goods to their destination, the petitioner has taken the trouble of coming to this Court, Smt. Sujini submits. 5. Drawing my attention to Section 129 (3) of the Act, Smt. Sujini contends that the provision does not refer to the transporter, who according to her, has no role to play in the entire scheme of the GST. 6. In the alternative, Smt. Sujini has submitted that the transaction is genuine and there is no possibility of, not even
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the interplay between Sections 126 and 129 of the Act, Dr.James has submitted that Section 129 begins with a non-obstante clause. It stands protected from every other provision. She has also pointed out that earlier this Court, on more than one occasion, has held that unfilled Part B of the e-way bill cannot be treated as a minor omission even as for the CBITC circular, dated 14th September 2018. She has, in the alternative, submitted that whatever is the defence the petitioner may have, that could not exonerate it from complying with Section 129 (3) if it wants provisional custody of the goods. In other words, under Section 129, if the petitioner wants the goods provisionally released, then it must comply the statutory mandate. 9. Heard Smt. Sujini, the learned counsel for the petitioner, Dr. Thushara James, the learned Government Pleader, for the respondents. 10. Indeed, as seen from the detention notice, the petitioner carried an e-way bill, in which Part B remained unfilled. True,
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ed to be easily rectifiable if the same is an error apparent on the face of the record (2) The penalty imposed under this Act shall depend on the facts and circumstances of each case and shall be commensurate with the degree and severity of the breach. (3) No penalty shall be imposed on any person without giving him an opportunity of being heard. (4) The officer under this Act shall while imposing penalty in an order for a breach of any law, regulation or procedural requirement, specify the nature of the breach and the applicable law, regulation or procedure under which the amount of penalty for the breach has been specified. (5) When a person voluntarily discloses to an officer under this Act the circumstances of a breach of the tax law, regulation or procedural requirement prior to the discovery of the breach by the officer under this Act, the proper officer may consider this fact as a mitigating factor when quantifying a penalty for that person. (6) The provisions of this section sh
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