M/S VALIMOHAMMED JUSAB AND CO. VERSUS STATE OF GUJARAT

Release of Seized vehicle alongwith goods – CGST Act – E-way bill was not tendered for the goods in movement – machinery on the way to be taken back to the premises of the petitioner directly to Yadav Trading Co., namely, the dealer from whom the machinery has been purchased for the purpose of repairs – HELD THAT:- The old and used Winch Machine was being transported from the premises of Yadav Trading Co. where it had been sent for repairs and was being transported back to Nirma Ltd., there is substance in the submissions made by the learned advocate for the petitioner that at best, the petitioner would be liable to pay fine of ₹ 10,000/- as contemplated under clause (xiv) of section 122 of the GGST Act, 2017.

Issue notice, returnable on 17.10.2019.

No.- R/SPECIAL CIVIL APPLICATION NO. 16702 of 2019

Dated.- September 27, 2019

MS HARSHA DEVANI AND MS SANGEETA K. VISHEN, JJ.

For The Petitioner (s) : MR VARIS V ISANI (3858)

For The Respondent (s) : None

ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. Mr. Varis V. Isani, learned advocate for the petitioner has submitted that the petitioner had a work order in respect of some job-work for which a Winch Machine was transported to Nirma Ltd., Kala Talav. However, on account of some defect in the machinery, the same was taken back to the premises of the petitioner directly to Yadav Trading Co., namely, the dealer from whom the machinery has been purchased for the purpose of repairs on 20.8.2019.

2. It was submitted that a gate pass had been issued by Nirma Ltd. with regard to removal of the Winch Machine from its premises. However, when the machine in question was being transported back to the premises of Nirma Ltd., the vehicle in question being GJ-04-V-4335 was intercepted and the same has been seized under section 130 of the Gujarat Goods and Service Tax Act, 2017 (hereinafter referred to as ‘GGST Act, 2017’) read with the relevant provisions of other statutes, mainly on the ground that the e-way bill was not tendered for the goods in movement.

3. The learned advocate for the petitioner submitted that vehicle came to be intercepted at 18:15 hours on 20.8.2019 and immediately thereafter, at 7.49 p.m., the e-way bill came to be generated. The attention of the court was invited to the provisions of section 2(108) of the GGST Act, 2017 to submit that taxable supply means a supply of goods or services or both which is leviable to tax under the Act. It was submitted that in the present case, the goods were merely being transported back to the premises of Nirma Ltd. for job-work and that no goods or services were leviable to tax in respect thereof.

4. Reference was made to the provisions of section 122 of the GGST Act, 2017 and more particularly, clause (xiv) thereof to submit that the same provides that where a taxable person who transports any taxable goods without the cover of documents as may be specified in this behalf, he shall be liable to pay a penalty of ₹ 10,000/- or an amount equivalent to the tax evaded or the tax not deducted under section 51 etc. It was submitted that in this case, the petitioner is not liable to pay any tax and hence, at the most, the petitioner could be made liable to pay penalty of ₹ 10,000/-.

5. Having regard to the submissions advanced by the learned advocate for the petitioner in the context of the documents produced on record, which prima facie indicate that the old and used Winch Machine was being transported from the premises of Yadav Trading Co. where it had been sent for repairs and was being transported back to Nirma Ltd., there is substance in the submissions made by the learned advocate for the petitioner that at best, the petitioner would be liable to pay fine of ₹ 10,000/- as contemplated under clause (xiv) of section 122 of the GGST Act, 2017.

6. Under the circumstances, issue notice, returnable on 17.10.2019. By way ad-interim relief, the respondents are directed to forthwith release Truck No.GJ-04-V-4335 along with the goods contained therein subject to the petitioner depositing a sum of ₹ 10,000/- with the respondent authorities.

7. Direct service, is permitted.

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