Uttarakhand High Court
WPMS/2160/2022 on 6 April, 2023
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WPMS No.2160 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Mr. S.K. Posti, Senior Advocate,
assisted by Mr. Ashutosh Posti, Advocate
for the petitioner.
Mr. Mohit Maulekhi, Brief Holder for
the State of Uttarakhand.
Heard learned counsel for the
parties.
By means of this writ petition,
petitioner has sought the following
reliefs:
"i) Issue a suitable writ, order or direction
in the nature of certiorari calling the record
of the case and quash the entire proceedings
initiated by the respondent no. 2 under
section 130 of the UKGST Act.
ii) Issue a suitable writ, order or direction
in the nature of certiorari quashing the notice
dated 20.05.2022 i.e. MOV-10 and order
dated 26.05.2022 i.e. MOV-11 passed by
respondent no. 2 (Annexure No.4 & 5 to the
writ petition).
iii) Issue a writ, order or direction in the
nature of mandamus directing the
respondent no.2 and 3 to release the goods
and vehicle of the petitioner forthwith
without demanding any security mainly case
or bank guarantee."
According to learned counsel for the
petitioner, petitioner's consignment was
with valid documents, as required under
Section 68 Uttarakhand G.S.T. Act read
with Rule 138-A of Uttarakhand G.S.T.
Rules, 2017, however, his goods and
vehicle were seized by G.S.T. Authorities
based on suspicion that the consignor is
a non-existing entity.
It is contended by learned Senior
Advocate for the petitioner that
petitioner had paid entire tax under
I.G.S.T. Act, 2017, therefore, his goods
could not have been seized merely based
on suspicion. He further submits that,
under the G.S.T. laws, consignee is not
expected to make a roving enquiry as to
the antecedents of the consignor. He
further submits that even otherwise also,
there is no mechanism under G.S.T. laws
to ascertain whether the consignor has
paid tax to the G.S.T. Authorities. He
further submits that petitioner had done
whatever he could do and he had
categorically stated in his reply to the
show cause notice that the consignor
firm was duly registered with G.S.T.
Authorities on the date when petitioner
made the purchase and petitioner had
enclosed copy of details of the consignor
firm as downloaded from the G.S.T.
Portal, however, these aspects were
completely overlooked by the G.S.T.
Authorities while confiscating goods and
conveyance of the petitioner.
Learned Senior Advocate for the
petitioner relies upon a judgment
rendered by Division Bench of Hon'ble
Orissa High Court in Writ Petition (C)
No.15265 of 2021 "Bright Star Plastic
Industries Vs. Additional Commissioner
of Sales Tax", reported in 2022 NTN
(Vol.78)-47. Paragraph no. 19 of the said
judgment is reproduced below:
"19. To attribute fraud in such
circumstances to the Petitioner, as a
purchasing dealer, the Department would
have to satisfy a high threshold of showing
that the purchaser indulged in the
transactions with the full knowledge that
the selling dealer was non-existent. The
Department would have to show that
somehow the purchasing dealer and selling
dealer acted in connivance to defraud the
revenue. This threshold has not been made
in the present case. In other words, the
Department has failed to show that the
Petitioner as a purchasing dealer
deliberately availed of the ITC in respect of
the transactions with an entity knowing that
such an entity was not in existence."
Having regard to the facts and
circumstances of the case, it is directed
that, till the next date of listing, effect &
operation of impugned order dated
26.05.2022, shall remain stayed and
respondents are directed to release the
conveyance and goods of the petitioner,
subject to deposit of 1/3 of the amount
of value of the goods, as indicated in the
impugned order, within one week from
today. Petitioner shall also furnish
personal bond for remaining amount to
the satisfaction of the concerned
authority, within the same time.
List alongwith WPMS No. 2157 of
2022 on 06.06.2023.
(Manoj Kumar Tiwari, J.)
06.04.2023
Arpan
