DAILY EXPRESS Versus THE ASSISTANT STATE TAX OFFICER SURVEILLANCE SQUAD NO. 8, STATE GST DEPARTMENT, KOLLAM, COMMISSIONER OF KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAUPURAM AND STATE OF KERALA, THIRUVANANTHAPURAM
GST
2018 (12) TMI 138 – KERALA HIGH COURT – 2019 (21) G. S. T. L. 122 (Ker.)
KERALA HIGH COURT – HC
Dated:- 29-11-2018
WP (C). No. 35665 of 2018
GST
MR DAMA SESHADRI NAIDU, J.
For The Petitioner : ADV. SMT. S. SUJINI
For The Respondent : DR THUSHARA JAMES, GP
JUDGMENT
The petitioner is a transporter. When it was transported goods for a consignor, the Assistant State Tax Officer (“ASTO”) intercepted those goods and detained them, along with the vehicle. He issued the Ext.P4 order for physical verification/inspection of the conveyance, followed by the Ext.P7 notice under Section 129(3). The reason assigned for the detention is this:
“Part B of the accompanied e-way bill has not completed, hence not valid for the movement of goods a
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nee 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 a doubt about, any tax evasion. In that context, Smt. Sujini has drawn my attention to Section 126 of the Act. According to her, Section 126 eminently exempts minor discrepancies. More particularly, when the discrepancy does not involve tax evasion, the detention under Section 129 is unwanted. Then, Smt. Sujini has referred to Section 74 of the Act and contended that the demand and recovery of tax must be based on fraud, willful misstatement, or suppression of facts. None presents
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ve, 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, on earlier occasions, this Court has examined the issue; one such occasion is K. Karunakaran v. The Assistant State Tax Officer. Judgment, dt 9th August 2018, in WP (C) No.26986 of 2018
11. As rightly contended by Dr.James, Section 129 begins with a non-obstante clause and, perhaps, on that count it may be treated as a self-contained code on the provisional release of the goods. In this context, I may as well examine Section 126, which reads as follows:
“126. General disciplines
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ocedural 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 shall not apply in such cases where the penalty specified under this Act is either a fixed sum or expressed as a fixed percentage.”
12. I reckon 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 int
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