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Case Title |
Bokaro Transport Company, Ghaziabad VS The State of Jharkhand |
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Court |
Jharkhand High Court |
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Honourable Judges |
Justice Aparesh Kumar Singh Justice Deepak Roshan |
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Citation |
2022 (07) GSTPanacea 707 HC Jharkhand W.P.(T) No. 2722 Of 2022 |
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Judgement Date |
06-July-2022 |
The learned counsel for the petitioner contends that the entire proceedings leading to the imposition of tax and penalty, as per the order dated 2nd June 2022 (Annexure-8) under Section 129(3) of the Jharkhand Goods and Services Tax (JGST) Act, were concluded on the same day that the detention order under Section 129(1) in Form GST MOV-06 was issued. Furthermore, the show cause notice in Form GST MOV-07 (Annexure 6 series) was also issued on the same day to the driver.
Despite the proceedings, the summary of the order in Form GST DRC-07 has not yet been issued. This omission precludes the petitioner from filing an appeal. Consequently, the petitioner’s vehicle remains detained. It is important to note that the office of the Appellate Authority was vacant until 16th January 2022. Given this context, the petitioner approached this Court on 16th June 2022 seeking immediate relief, arguing that the impugned proceedings violate the principles of natural justice and the provisions of Section 68 and Section 129 of the JGST Act, 2017.
In light of these circumstances, the learned counsel for the petitioner states that the petitioner is willing to furnish a bond for the release of the vehicle and will approach the Appellate Authority once it is notified
In the case at hand, the learned counsel for the petitioner argues that the entire process leading to the imposition of tax and penalty, as per the order dated June 2, 2022 (Annexure-8) under Section 129(3) of the JGST Act, was completed on the same day that the detention order under Section 129(1) in Form GST MOV-06 was issued. Additionally, a show-cause notice in Form GST MOV-07 (Annexure 6 series) was issued to the driver. However, as of now, no summary of the order in Form GST DRC-07 has been issued, which prevents the petitioner from filing an appeal. The petitioner’s vehicle remains detained.
It is noted that until January 16, 2022, the office of the Appellate Authority was vacant. Consequently, the petitioner approached the Court on June 16, 2022, seeking immediate relief, asserting that the impugned proceedings violate the principles of natural justice as well as Sections 68 and 129 of the JGST Act, 2017. The petitioner expressed willingness to provide a bond for the release of the vehicle and to approach the Appellate Authority if one was appointed.
In response, the learned counsel for the State, Mr. P.A.S. Pati, informed that the Appellate Authority assumed charge on June 17, 2022. He also mentioned that he would seek instructions regarding whether the GST DRC-07 has been issued to the driver/transporter-petitioner.
The court has scheduled the next hearing for June 28, 2022.
Learned counsel for the petitioner contends that the entire proceedings leading to the imposition of tax and penalty, as outlined in the order dated June 2, 2022 (Annexure-8) under Section 129(3) of the JGST Act, were concluded on the same day the detention order under Section 129(1) in Form GST MOV-06 was issued and the show cause notice in Form GST MOV-07 (Annexure 6 series) was served upon the driver. As of now, no summary of the order in Form GST DRC-07 has been issued, preventing the petitioner from filing an appeal. The petitioner’s vehicle remains detained, and until January 16, 2022, the office of the Appellate Authority was vacant. Consequently, the petitioner sought relief from this Court on June 16, 2022, arguing that the impugned proceedings violate principles of natural justice and Section 68 and Section 129 of the JGST Act, 2017. The petitioner is willing to provide a bond for the vehicle’s release and to approach the Appellate Authority if notified.
Learned counsel for the State, Mr. P.A.S. Pati, indicates that the appellate authority assumed charge on June 17, 2022. However, he seeks instructions regarding whether GST DRC-07 has been issued to the driver/transporter-petitioner.
The case is scheduled to be listed on June 28, 2022.
A detailed counter affidavit was filed by the State on July 5, 2022. The petitioner’s vehicle remains detained. Since GST DRC-07 was not uploaded on the common portal, the petitioner, who owns the truck, faced technical difficulties in filing an appeal online. Additionally, the petitioner encountered issues due to the absence of a GSTIN number, as the proceedings were conducted against the driver.
The learned counsel for the petitioner has argued that the proceedings are flawed due to a violation of the principles of natural justice and the required procedures for adjudicating cases involving the detention of goods and conveyances in transit. Both the petitioner’s counsel and the State’s counsel have cited Circular No. 41/15/2018-GST dated April 13, 2018, issued by the Ministry of Finance, Department of Revenue, CBIC, GST Policy Wing, New Delhi, and Circular No. 41/2018 dated April 20, 2018, issued by the Commercial Taxes Department, Government of Jharkhand.
According to Para 2(v) of Circular No. 41/2018, a summary of every order in FORM GST MOV-09 and FORM GST MOV-11 should be uploaded electronically in FORM GST-DRC-07 on the common portal. However, the learned counsel for the respondent State, upon instructions, has submitted that an appeal can be filed even against the order contained in FORM GST MOV-09. He also mentioned that the GSTIN number along with the ID and password can be provided to the petitioner-owner if he approaches the Deputy Commissioner of State Taxes, Dumka Circle, Dumka.
Therefore, the petitioner is advised to avail the alternative remedy of appeal under Section 107 of the JGST Act, 2017. Additionally, the petitioner may seek the release of the vehicle by furnishing a bond and a bank guarantee equivalent to the liability imposed as per FORM GST MOV-09.
The learned counsel for the petitioner has argued that the proceedings are vitiated due to the violation of principles of natural justice and improper procedures followed by the adjudicating authority in cases involving the detention of goods and conveyances in transit. Both the petitioner and the State referred to Circular No. 41/15/2018-GST dated 13.04.2018 by the Ministry of Finance, CBIC, GST Policy Wing, and Circular No. 41/2018 dated 20.04.2018 by the Commercial Taxes Department, Government of Jharkhand. Although Circular No. 41/2018 at Para 2(v) mandates that a summary of every order in FORM GST MOV-09 and FORM GST MOV-11 be uploaded electronically in FORM GST-DRC-07 on the common portal, the respondent State’s counsel, on instruction, submitted that an appeal could still be preferred against the order in FORM GST MOV-09. The counsel further noted that the petitioner could obtain the GSTIN number, ID, and password by approaching the Deputy Commissioner of State Taxes, Dumka Circle, Dumka. Thus, the petitioner should utilize the alternative remedy of appeal under Section 107 of the JGST Act, 2017, and seek the release of the vehicle by furnishing a bond and a bank guarantee equivalent to the imposed liability in FORM GST MOV-09.
The petitioner’s counsel reiterated the plea of natural justice violation but indicated the petitioner’s readiness to approach the appellate authority, as notified on 17.06.2022. Considering the circumstances, the petitioner was granted the liberty to approach the appellate authority against the impugned order in FORM GST MOV-09. Upon doing so, the Deputy Commissioner, State Taxes, Dumka Circle, Dumka, will provide the GSTIN number for the petitioner to file an appeal online. If the appeal cannot be filed online due to technical issues, the petitioner may file it manually before the Deputy Commissioner, State Taxes, Dumka Circle, Dumka.
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