Gujarat HC issues notice in writ challenging validity of Section 129 of CGST Act w.r.t. detention of goods; grants interim relief

The Hon’ble HC, Gujarat in the matter of AAB India Ltd. v. Union of India [R/Special Civil Application No. 728 of 2020 with Civil Application (For Stay) No. 1 of 2020 decided on January 10, 2020] issues notice in writ petition challenging validity of Section 129 of Central Goods and Services Tax, 2017 (“CGST Act”)/ Gujrat Goods and Services Tax Act, 2017 (“GGST”), which grants arbitrary and unrestrained power to detain goods and is thereby violative of Article 14 and 19 of the Constitution of India.

Facts:

AAB India Ltd. (“the Petitioner”) has been issued GST MOV-07 by the Department (“Respondent”) under CGST Act/ GGST Act for four vehicles carrying goods in the nature of electrical goods. Later, the Petitioner has also received order in GST MOV-09 on January 9, 2020. The total liability towards the tax and penalty plus interest as fixed comes to around ₹ 1,00,81,944/.

Issue involved:

Challenged the validity of Section 129 of the CGST Act/ GGST Act.

Held:

The Hon’ble HC, Gujarat in R/Special Civil Application No. 728 of 2020 with Civil Application (For Stay) No. 1 of 2020 decided on January 10, 2020, held as under:

• It appears that a notice under Section 129(3) of the CGST Act/ GGST Act i.e. GST MOV-07 came to be issued calling upon the Petitioner to appear before the authority concerned on December 31, 2019.

• The legal issues, which have been raised by the Petitioner shall be heard and decided on the returnable date. However, the court was inclined to pass an interim order for the release of the goods and the vehicles.

• Direct the Petitioner to deposit an amount of ₹ 50,40,972/- towards the tax with the Respondent and the balance amount of ₹ 50,40,972/- towards the penalty shall be in the form of a bank guarantee of any nationalized bank.

The HC has posted the matter on February 12, 2020.

Relevant provisions:

Section 129 of CGST Act/ GGST Act:

“129. Detention, seizure and release of goods and conveyances in transit

(1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released,––

(a) on payment of the applicable tax and penalty equal to one hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty;

(b) on payment of the applicable tax and penalty equal to the fifty per cent. of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty;

(c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed:

Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods.

(2) The provisions of sub-section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances.

(3) The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c).

(4) No tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard.

(5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded.

(6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within fourteen days of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of section 130:

Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer.”