SAVAN RETAILERS PRIVATE LIMITED VERSUS UNION OF INDIA, & ORS.

Withdrawal of cancellation of petitioner’s registration – input tax credit – GST Act – HELD THAT:- We direct the respondents to examine the petitioner’s grievance and to unblock the petitioner’s ITC balance, if the blocking is found to be unjustified. Decision in this regard should be taken positively within the next four working days.

List on 15.10.2019.

No.- W.P.(C) 10386/2019 and C.M. No. 42830/2019

Dated.- September 24, 2019

MR. VIPIN SANGHI AND MR. SANJEEV NARULA JJ.

Petitioner Through: Mr. Tarun Gulati, Sr. Advocate with Mr. Kishore Kunal and Mr. Pratush Chodhary, Advocates.  

Respondents Through: Mr. G.D. Sharma, Advocate for R-1. Ms. Sonu Bhatnagar and Ms. Venus Mehrotra, Advocates for R-2. Mr. Anuj Aggarwal, ASC, GNCTD with Mr. Deepak Shrivastava, Advocate.  

O R D E R

At the outset, learned counsel for the petitioner submits that the impugned show-cause notice dated 19.09.2019 issued by the respondents for cancellation of the petitioner’s registration under the GST Act has been withdrawn vide communication dated 23.09.2019 after considering the petitioner’s reply. To that extent, the relief prayed for in petition does not survive. Learned counsel for the petitioner, however, submits that the respondents have blocked the ITC of the petitioner which is evident from the screenshot produced by the petitioner from the portal of the respondents at page 75 of the writ petition. The same shows blocked credit balance as ₹ 58,16,444.00/-. The said credit has been blocked without any showcause notice, hearing or reasons, and no provision of law has been cited to justify the said blocking of the credit due to the petitioner.

Issue notice. Learned counsels accept notice on behalf of the respondents. We direct the respondents to examine the petitioner’s grievance and to unblock the petitioner’s ITC balance, if the blocking is found to be unjustified. Decision in this regard should be taken positively within the next four working days. However, in case, the respondents have any justification for the said blocking of the ITC of the petitioner, they shall file their reply explaining the reasons therefor within ten days from today with advance copy to counsel for the petitioner. The petitioner may file rejoinder thereafter.

List on 15.10.2019.

Dasti under the signatures of the Court Master.

SAURABH CHHAJER VERSUS STATE OF RAJASTHAN, UNION OF INDIA, THROUGH SENIOR INTELLIGENCE OFFICER DIRECTORATE GENERAL OF GOOD AND SERVICE TAX INTELLIGENCE JAIPUR ZONAL UNIT JAIPUR

Interim bail application – bail sought on humanitarian grounds as accused wife due to deliver very shortly – HELD THAT:- Considering the facts that petitioner’s wife is due to deliver within this week and on humanitarian grounds, it is deemed proper to allow the interim bail application of the petitioner for a period of fifteen days subject to petitioner surrendering his passport with the concerned Jail Superintendent.

The accused-petitioner shall be released on interim bail for a period of fifteen days from the date of release – interim bail application allowed.

No.- S.B. Criminal Miscellaneous (Interim) Bail Application No. 12943/2019

Dated.- September 24, 2019

Citations:

  1. Nandkumar Pandurang Ghadge Versus State Of Maharashtra – 2007 (1) TMI 634 – Bombay High Court

MR. PANKAJ BHANDARI J.

For Petitioner(s) : Mr. Sudhir Jain.

For U.o.I. : Mr. Siddharth Ranka.

For State : Mr. Arvind Kumar, PP.

Order

1. Petitioner has filed this interim bail application under Section 439 of Cr.P.C.

2. Complaint No.34/2019 is pending before the Court of Chief Metropolitan Magistrate (Economic Offences) Jaipur Metropolitan, for offence under Sections 132(1), (b) (c), (f), (g), (k), (i) of Central Goods and Service Tax Act 2017 read with Section 69 CGST Act punishable under Section 132(1)(i)(iv) of Central Goods and Service Tax Act, 2017 read with 132(5) of CGST Act.

3. It is contended by counsel for the petitioner that petitioner’s wife is pregnant and the delivery is expected in last week of September, 2019. It is contended that the interim bail is sought on humanitarian grounds as husband’s presence is important at the time of delivery. It is also contended that parents of petitioner’s wife are not residing at Jaipur and there is no one to look after her.

4. Counsel for the petitioner has placed reliance on “Nandkumar Pandurang Ghadge vs. State of Maharashtra 2007 (23) R.C.R. (Criminal) 868” wherein interim bail was granted on humanitarian grounds as accused wife due to deliver very shortly.

5. Learned Public Prosecutor and counsel for the complainant have opposed the interim bail application. It is contended that petitioner is involved in claiming fake currency inputs to the tune of ₹ 33 crore and regular bail was rejected twice by the Court below.

6. I have considered the contentions.

7. Considering the contentions of counsel for the petitioner and also the facts that petitioner’s wife is due to deliver within this week and on humanitarian grounds, I deem it proper to allow the interim bail application of the petitioner for a period of fifteen days subject to petitioner surrendering his passport with the concerned Jail Superintendent.

8. This interim bail application is accordingly allowed and it is directed that accused-petitioner shall be released on interim bail for a period of fifteen days from the date of release. He should surrender after the expiry of interm bail i.e. on 09.10.2019 before the concerned Jail Superintendent. Petitioner is granted interim bail provided he furnishes a personal bond in the sum of ₹ 10,00,000/- (Rupees Ten Lac Only) together with two sureties in the sum of ₹ 5,00,000/- (Rupees Five Lac Only) each to the satisfaction of the learned trial court.

SMT. MEENA ANIL JAIN VERSUS STATE OF U.P. AND 3 OTHERS

Waiver of the bar of alternative remedy – detention of goods alongwith vehicle – it was alleged that neither there was any genuine transport agency nor there was any genuine buyer disclosed in the documents found accompanying the goods – HELD THAT:- While the writ petition is being provisionally entertained because of non constitution of Tribunal, insofar as interim relief is concerned, it is provided that the order of confiscation of the truck, shall remain in abeyance, subject to the petitioner depositing with the respondent no.3, an amount equal to tax on the goods found loaded on the truck within two weeks from today.

List on 16.10.2019 alongiwth Writ Tax No. 942 of 2018.

No.- Writ Tax No. – 1068 of 2019

Dated.- September 24, 2019

Citations:

  1. M/s Jai Baba Amarnath Industries Versus , State Of U.P. And 3 Others Counsel for – 2019 (12) TMI 168 – ALLAHABAD HIGH COURT

Hon’ble Saumitra Dayal Singh, J.

Counsel for Petitioner :- Rohan Gupta

Counsel for Respondent :- C.S.C.

ORDER

1. Heard Sri Sameer Gupta, Advocate, holding brief of Sri Rohan Gupta, learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. Learned counsel for the petitioner submits that the petitioner is only the owner of the truck and that he had no involvement in the actual transaction which the revenue alleges was bogus inasmuch as neither there was any genuine transport agency nor there was any genuine buyer disclosed in the documents found accompanying the goods.

3. At present, the writ petition has been filed against the order of the first appeal authority claiming waiver of the bar of alternative remedy since the Tribunal has yet not been constituted.

4. Learned Standing Counsel prays for and is granted two weeks’ time to file counter affidavit.

5. List on 16.10.2019 alongiwth Writ Tax No. 942 of 2018.

6. While the writ petition is being provisionally entertained because of non constitution of Tribunal, insofar as interim relief is concerned, it is provided that the order of confiscation of the truck bearing registration no. MH-49 AT 0889 shall remain in abeyance, subject to the petitioner depositing with the respondent no.3, an amount equal to tax on the goods found loaded on the truck within two weeks from today. The amount so deposited shall abide by final orders passed in the writ petition.

JILANI SHAHNAVAZ MULLA VERSUS STATE OF GUJARAT

Confiscation of Conveyance – Invocation of second proviso to sub-section (2) of section 130 as well as sub-section (3) of section 130 of the Act – HELD THAT:- Issue Notice returnable on 10th October, 2019.

No.- R/SPECIAL CIVIL APPLICATION NO. 16318 of 2019

Dated.- September 25, 2019

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

For The Petitioner (s) : UCHIT N SHETH (7336)

For The Respondent (s) : MS MAITHILI MEHTA, ASSISTANT GOVERNMENT PLEADER/PP(99)

ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. Mr. Uchit Sheth, learned advocate for the petitioner has invited the attention of the court to the provisions of section 130 of the Central Goods and Services Tax Act, 2017 and more particularly to the third proviso to sub-section (2) thereof, to submit that when any conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. It was submitted that, therefore, even if an order of confiscation is passed under section 130 of the CGST Act, at best, the petitioner would be required to pay a fine equal to the tax payable on the goods being transported.

2. Ms. Maithili Mehta, learned Assistant Government Pleader has disputed the aforesaid position by inviting the attention of the court to the second proviso to sub-section (2) of section 130 as well as sub-section (3) of section 130 of the Act.

3. Having regard to the submissions advanced by the learned advocates for the respective parties, Issue Notice returnable on 10th October, 2019.

4. By way of ad-interim relief, the second respondent is directed to release the vehicle of the petitioner being truck No.MH-48AG-7266 upon the petitioner paying a fine of ₹ 1,05,254/- (Rupees one lakh five thousand two hundred fifty four only) as proposed in the notice dated 15.7.2019 issued under section 130 of the Act in lieu of confiscation of conveyance.

5. The above arrangement shall be subject to the final outcome of the petition as well as the final outcome of the proceedings under section 130 of the CGST Act. Till then, such amount shall be treated as a deposit made by the petitioner subject to the final outcome of the proceedings under section 130 of the CGST Act without prejudice to the right of the petitioner to challenge the same before the higher authority in case an adverse order is passed against him. The petitioner shall also file an undertaking before this court to the effect that in case an adverse order is passed against him under section 130 of the CGST Act, he shall pay the differential amount subject to his right to challenge such order. Direct service is permitted.

PRAKASHSINH HATHISINH UDAVAT VERSUS STATE OF GUJARAT

Seizure of petitioner’s car – sub-section (2) of section 67 of the CGST Act – HELD THAT:- Issue Notice returnable on 27th September, 2019.

No.- R/SPECIAL CIVIL APPLICATION NO. 15365 of 2019

Dated.- September 25, 2019

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

For The Petitioner (s) : MR MAULIK VAKHARIYA(6628)

For The Respondent (s) : None

ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. Mr. Maulik Vakhariya, learned advocate for the petitioner has invited the attention of the court to the order of seizure made under rule 139(2) of the Goods and Services Tax Rules, 2017, to point out that the petitioner’s car bearing No. GJ-01- RX-0477 has been seized at the Rajya Kar Bhavan, Ahmedabad. The attention of the court was invited to the provisions of sub-section (2) of section 67 of the CGST Act which finds reference in the order of seizure, to point out that the same relates to power of inspection, search and seizure. It was submitted that the petitioner’s car came to be seized when the petitioner had gone to the tax office for attending some proceeding there. It was submitted that the impugned order of seizure is totally without any authority of law, inasmuch as, sub-section (2) of section 67 of the CGST Act does not empower the respondents to act in such an arbitrary manner.

2. Having regard to the submissions advanced by the learned advocate for the petitioner, Issue Notice returnable on 27th September, 2019.

Direct service is permitted today.

NAVRANG ROADLINES PVT. LTD. VERSUS UNION OF INDIA

Permission to make copies of documents seized – subsection (5) of section 67 of the CGST Act, 2017 – HELD THAT:- Issue Notice, returnable on 3rd October 2019. – In the meanwhile, the respondents are directed to furnish the copies of the relevant documents to the petitioner as envisaged under sub-section (5) of section 67 of the CGST Act, on or before 28th September 2019.

No.- R/SPECIAL CIVIL APPLICATION NO. 16348 of 2019

Dated.- September 25, 2019

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

For The Petitioner (s) : Mr ADITYA R GUNDECHA (8869)

For The Petitioner (s) : MR NARENDRA L JAIN (5647)

ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. Mr. Narendra L. Jain, learned advocate for the petitioner has invited the attention of the court to the provisions of subsection (5) of section 67 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the CGST ACT’) to submit that the statute permits a person from whose custody any documents are seized to make copies thereof unless, in the opinion of the proper officer, the same would prejudicially affect the investigation. It was submitted that despite repeated requests of the petitioner to provide a copy of the data that is lying with the respondents, they have not been acceded to such requests and that, in the meanwhile, the statutory period for filing the income tax return is likely to be over.

2. In view of the above, issue Notice, returnable on 3rd October 2019. In the meanwhile, the respondents are directed to furnish the copies of the relevant documents to the petitioner as envisaged under sub-section (5) of section 67 of the CGST Act, on or before 28th September 2019.

2.1 Direct service is permitted today.

RAFIQBHAI MAMADBHAI MANAKIYA VERSUS STATE OF GUJARAT

Release of detained goods – section 130 of the Central Goods and Services Tax Act, 2017 – HELD THAT:- By way of ad-interim relief, the second respondent is directed to release the vehicle of the petitioner being truck No.GJ-03-AX-5727 upon the petitioner paying a fine of ₹ 62,024/- as proposed in the notice dated 12.7.2019 issued under section 130 of the Act in lieu of confiscation of conveyance.

Issue Notice returnable on 10th October, 2019.

No.- R/SPECIAL CIVIL APPLICATION NO. 16319 of 2019

Dated.- September 25, 2019

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

For The Petitioner (s) : UCHIT N SHETH (7336)

For The Respondent (s) : MR TRUPESH KATHIRIYA, ASSISTANT GOVERNMENT PLEADER/PP(99)

ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. Mr. Uchit Sheth, learned advocate for the petitioner has invited the attention of the court to the provisions of section 130 of the Central Goods and Services Tax Act, 2017 and more particularly to the third proviso to sub-section (2) thereof, to submit that when any conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. It was submitted that, therefore, even if an order of confiscation is passed under section 130 of the CGST Act, at best, the petitioner would be required to pay a fine equal to the tax payable on the goods being transported.

2. Mr. Trupesh Kathiriya, learned Assistant Government Pleader has disputed the aforesaid position by inviting the attention of the court to the second proviso to sub-section (2) of section 130 as well as sub-section (3) of section 130 of the Act.

3. Having regard to the submissions advanced by the learned advocates for the respective parties, Issue Notice returnable on 10th October, 2019.

4. By way of ad-interim relief, the second respondent is directed to release the vehicle of the petitioner being truck No.GJ-03-AX-5727 upon the petitioner paying a fine of ₹ 62,024/- (Rupees sixty two thousand twenty four only) as proposed in the notice dated 12.7.2019 issued under section 130 of the Act in lieu of confiscation of conveyance.

5. The above arrangement shall be subject to the final outcome of the petition as well as the final outcome of the proceedings under section 130 of the CGST Act. Till then, such amount shall be treated as a deposit made by the petitioner subject to the final outcome of the proceedings under section 130 of the CGST Act without prejudice to the right of the petitioner to challenge the same before the higher authority in case an adverse order is passed against him. The petitioner shall also file an undertaking before this court to the effect that in case an adverse order is passed against him under section 130 of the CGST Act, he shall pay the differential amount subject to his right to challenge such order.

Direct service is permitted.

RAMESH BHAIDAS SONWANE VERSUS STATE OF GUJARAT

Release of detained goods – section 130 of the Central Goods and Services Tax Act, 2017 – evasion of tax – HELD THAT:- By way of ad-interim relief, the respondents are directed to forthwith release the Truck No. MH18BG3887, upon the petitioner paying the amount of ₹ 58,576/-, as stipulated in the impugned order, as fine in lieu of confiscation of conveyance subject to the final outcome of the petition.

Issue Notice, returnable on 10.10.2019.

No.- R/SPECIAL CIVIL APPLICATION NO. 16320 of 2019

Dated.- September 26, 2019

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

For The Petitioner (s) : UCHIT N SHETH (7336)

For The Respondent (s) : ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP (99)

ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. The learned advocate for the petitioner has tendered a draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith.

2. Mr. Uchit Sheth, learned advocate for the petitioner, has invited the attention of the court to the impugned order of confiscation made under section 130 of the Central Goods and Services Tax Act, 2017 read with the relevant provisions of the State/Union Territory Goods and Services Tax Act/ The Integrated Goods and Services Tax Act, 2017, to point out that in Paragraph 2, the authority concerned has only referred to the deficiencies noticed at the time when the vehicle was intercepted and confiscated. It was pointed out that paragraph5 thereof, where reasons are required to be recorded, is totally blank and no finding has been recorded by the authority. The petitioner has not violated any provision of law with a view to evade payment of tax, as envisaged under section 130 of the Central Goods and Services Tax Act, 2017. It was further pointed out that in paragraph 6, the Officer has confiscated only the goods in question, despite which, in the calculation of tax, the authority has calculated fine in lieu of confiscation of conveyance. It was submitted that the impugned order is a totally nonspeaking order and hence, cannot be sustained.

3. Having regard to the submissions advanced by the learned advocate for the petitioner, issue Notice, returnable on 10.10.2019.

By way of ad-interim relief, the respondents are directed to forthwith release the Truck No. MH18BG3887, upon the petitioner paying the amount of ₹ 58,576/-, as stipulated in the impugned order, as fine in lieu of confiscation of conveyance subject to the final outcome of the petition. Direct service is permitted today.

BRANDTHOUGHT RETAIL PVT. LTD. VERSUS STATE OF GUJARAT

Release of goods alongwith the truck – section 129 of the Goods and Services Tax Act – HELD THAT:- By way of interim relief, the respondents are directed to forthwith release truck No.MH-04- DK-9208 along with the goods contained therein, subject to the final outcome of the petition.

Issue Rule returnable on 9th October, 2019.

No.- R/SPECIAL CIVIL APPLICATION NO. 11881 of 2019

Dated.- September 26, 2019

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

For The Petitioner (s) : MR UCHIT N SHETH (7336)

For The Respondent (s) : MS MAITHILI MEHTA ASSISTANT GOVERNMENT PLEADER(1) AND NOTICE SERVED BY DS(5)

ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. Issue Rule returnable on 9th October, 2019. Ms. Maithili Mehta, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents.

2. It is an admitted position, as categorically stated by the petitioner in paragraph 9 of the memorandum of petition, that the petitioner has already deposited tax and penalty as per the provisions of section 129 of the Goods and Services Tax Acts.

3. In view of the above, by way of interim relief, the respondents are directed to forthwith release truck No.MH-04- DK-9208 along with the goods contained therein, subject to the final outcome of the petition.

4. To be listed on the admission Board. Direct service is permitted today.

BIRLA CARBON INDIA PVT. LTD. (FORMERLY : SKI CARBON BLACK INDIA (PVT) LTD. VERSUS UNION OF INDIA AND OTHERS

Permission for withdrawal of petition – Input tax credit – input service distribution – allowing credit of GST paid on reverse charge and distribute it to other units – Rule 54(1) of the Central Goods and Service Tax Rules, 2017 – HELD THAT:- Mr. Chavda states that the Petitioner will file a representation within two weeks from today to the Nodal Officer Commissioner of Central Tax and Central Excise Mumbai-Central, Churchgate. This representation would be decided by the Nodal Officer as expeditiously as possible and preferably within period of 4 weeks from the date the application is made.

Petition disposed off as withdrawn.

No.- WRIT PETITION NO. 2467 OF 2019

Dated.- September 26, 2019

M.S. SANKLECHA & NITIN JAMDAR, JJ.

Mr. V.M. Chavda and Mr. M.V. Chavan, for the Petitioner.

Mr. J.B. Mishra, for Respondents.

P.C. :

This Petition filed under Article 226 of the Constitution of India seeks a writ of mandamus directing the Respondent Nos.1 and 2 (Asstt. Commissioner of Central Tax and Commissioner of Central Tax) to permit/allow the Petitioner’s Input Service Distributor (ISD) unit to take credit of GST paid on reverse charge and distribute it to other units. This on the basis that its right to take GST credit and to distribute amongst its manufacturing units is not hit for the period 1 July 2017 to 22 January 2018 by Rule 54(1) of the Central Goods and Service Tax Rules, 2017 which was only introduced with effect from 23 January 2018.

2. Mr. Chavda, learned counsel appearing for the Petitioner correctly states that before this writ could be issued it would be necessary for him to file a representation and demand justice from the appropriate authorities under the Central Goods and Services Tax Act, 2017.

3. In the above view, he seeks to withdraw this Petition that he would file a representation to the nodal officer with the Commissionerate.

4. Mr. Mishra, learned counsel appearing for Respondents states that the representation, if any should be filed with Commissioner of Central Tax & Central Excise, Mumbai-Central, Churchgate.

5. Mr. Chavda states that the Petitioner will file a representation within two weeks from today to the Nodal Officer Commissioner of Central Tax and Central Excise Mumbai-Central, Churchgate. This representation would be decided by the Nodal Officer as expeditiously as possible and preferably within period of 4 weeks from the date the application is made. Needless to state principles of natural justice would be followed while disposing of the representation.

6. In view of the above, the Petition is disposed of as withdrawn.