Surojit Das vs Assistant Commissioner Of State ...
2023 Latest Caselaw 663 Cal

Item No.13.

              IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                       CIVIL APPELLATE JURISDICTION
                              APPELLATE SIDE


                             HEARD ON: 20.01.2023

                           DELIVERED ON: 20.01.2023

                                   CORAM:

                THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
                                     AND
          THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA


                            M.A.T. No.36 of 2023
                                     with
                            I.A. No.CAN 1 of 2023

                                Surojit Das.
                                     Vs.
   Assistant Commissioner of State Tax, Goods and Services Tax, Bureau of
               Investigation (South Bengal), Durgapur & Ors.


Appearance:-
Mrs. Rita Mukherjee,
Mr. Ghanshyam Jha,
Mr. Rowsan Jha                   ...                    for the appellant.


Md. T. M. Siddique,
Mr. Debasish Ghosh,
Mr. Nilotpal Chatterjee,
Mr. D. Sahu                                  ...             for the State.

                                 JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

1. This intra-Court appeal is directed against the order dated

21st December, 2022 passed by the learned Single Bench in W.P.A.

No.28031 of 2022 and the subsequent order dated 3 rd January, 2023

by which the affidavit-in-opposition had been directed to be

filed by the respondents / department. The goods in question

have been intercepted and they have been seized and an order to

the said effect has been passed by the Assistant Commissioner,

Bureau of Investigation, South Bengal, Durgapur zone, who has

passed an order dated 18th November, 2022 demanding penalty of

Rs.30,22,600/-. The Deputy Commissioner of State Tax, Bureau of

Investigation, South Bengal, Durgapur zone has to the conclusion

that there is no document evidence produced by the appellant to

explain the discrepancies, which have been pointed out as they

had only produced a letter dated 6 th December, 2022 of the

appellant addressed to the Inspector, Central Division, Range -

IV, CGST & CX, Kolkata North Commissionerate and attached a copy

of the report dated 2nd December, 2022, which is illegible.

2. The question involved in the writ petition is whether the

authority was justified in holding that the appellant is not the

owner of the goods. The appellant would contend that the said

order is illegal as it is contrary to clause no.6 of the

circular dated 31st December, 2018 issued by the Central Board of

Indirect Taxes and Custom, GST Policy Wing, which states that if

the invoice or any other specified documents is accompanying the

consignment of goods, then either the consignor or the consignee

should be deemed to be the owner and only in case if the

invoices or other specified documents is not accompanying the

consignment of goods, then in such cases, the proper officer

should determine, who should be declared as the owner of the

goods.

3. It is submitted by the learned Advocate appearing for the

appellant that this circular has not been taken note of by the

Deputy Commissioner of State Tax, Bureau of Investigation.

Furthermore, there is no rival claimant claiming the said goods.

4. In any event, the correctness of the order passed by the

Deputy Commissioner, State Tax will be considered in the writ

petition, which is still pending after affidavit-in-opposition

is filed.

5. The learned Advocate for the appellant would submit that in

terms of Section 129(1)9a) of WBGST /CGST Act, the appellant can

seek for release of the goods without prejudice to the rights

and contentions of either parties. In fact, the learned Single

Bench in its order dated 21st December, 2022 has recorded the

submissions on behalf of the appellant that they are ready and

willing to pay security equivalent to the penalty in terms of

Section 129 (1)(a) of the WBGST/CGST Act. However, such a

prayer has not been made before the authority in the forum,

which is required to be made.

6. Therefore, we dispose of the appeal with a direction to the

appellant to file an application before the Deputy Commissioner

of State Tax, Goods and Services Tax, Bureau of Investigation,

South Bengal, Durgapur zone seeking relief under Section 129(1)

(a) of the said Act and such application shall be filed within

one week from the date of receipt of the server copy of this

judgment and order. On receipt of the said application, the

said authority shall independently consider such a prayer

uninfluenced by any of the observations made in its order dated

12th December, 2022, which is subject matter of the writ petition

and such order shall be passed within a period of 10 days from

the date on which the application is filed by the appellant.

7. It is made clear that such a prayer made by the appellant

is without prejudice to the rights and contentions of the

appellant in the writ petition nor the stand taken by the

department in their affidavit-in-opposition that may be filed.

8. There shall be no order as to costs.

9. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(T.S. SIVAGNANAM, J)

I agree,

(HIRANMAY BHATTACHARYYA, J.)

NAREN/PALLAB(AR.C)