SYNOPSIS : The petitioner filed the Writ of Certiorari against goods release order passed by the senior assistant of the Deputy State Tax officer, as arbitrary, illegal, without authority of law, unconstitutional and to declare the collection of tax and penalty as without jurisdiction.
In auto trolley petitioner has sent paper through a tax invoice and generated e-way bill to consignee. ON way to consignee, the auto trolley was blocked at 04:30pm by the political parties protesting against the CITIZEN AMENDMENT ACT at Basheerbagh, Hyderabad. The consignee shop is closed at 08:30pm, having no other option auto trolley driver the took supply goods to his place.
Auto trolley driver not able to supply the goods to the consignee on sunday
On Monday, the auto trolley was detained by the Deputy State Tax Officer and issued a detention notice in FORM GST Mov-07, alleging that the expiry of e-way bill, led to the tax and penalties. The tax officer has not issued a receipt for the detention of goods and further, he unloaded the goods in his relative's house.
The petitioner made an representation to the Deputy State Tax officer sought for release of the detained goods by explaining the cause for the expiry of e-way bill.
In 2nd representation, the petitioner mentioned that according to the decision made in writ tax No.1471 of 2018 by the Allahabad High Court one more additional day can be extended for distance more than 20km and along with the copy of 138 of CGST rules.
The 2nd respondent has passed order in form GST MOV - 09, ignoring the representation and decision of the Allahabad High Court. The petitioner had never admitted the paid tax and penalty. The senior assistant of the Deputy State Tax officer's issued release order of the goods detained on 06.01.2020.
In the counter affidavit, the E-way Bill is valid upto 05.01.2020, 12:00pm and were not valid on 06.01.2020. Accordingly rule 138 of GST, extra 24 hours extension can be made four hours before or after expiry. On 06.01.2020, Since it was a rain day, goods are kept in the relative's house of the Deputy State Tax officer and it is clear evasion of tax. On 20.01.2020 the petitioner paid the tax and penalty, thereafter senior Assistant of the Deputy State Tax officer released the vehicle by signing the release order.The omission of action of extension of the e-way bill by the petitioner justifies the tax and penalty levied.
The Deputy State Tax officer did not disclose the proceedings through which the Joint Commissioner authorized him to conduct the check of vehicles in the counter affidavit. Detention notice is signed by the Assistant Commissioner, but the Deputy State Tax officer name is mentioned in detention notice.
There is no provision to sub-delegate the powers of the Deputy State Tax officer to the Senior Assistant.The petitioner never gave consent to pay tax and penalty and further there is no evidence for evasion of tax.
The act does not permit The Deputy State Tax officer to keep goods in his relative's house. Without having any authority of law, the Deputy State Tax officer has kept the goods for more than 16 days
The Deputy State Tax officer obtained acknowledgment from the driver that they received the entire-stock, to escape liability for loss of goods
In the judgment, the Court deprecate the conduct of the Deputy State Tax Officer not even adverting to the response given by petitioner to the form GST MOV-07 in form GST MOV-09 and his deliberate intention to treat the validity of the expiry on the e-way bill as amounting to evasion of tax without any evidence of such evasion of tax by the petitioner and set aside the tax and penalty levied by the Deputy State Tax officer and directed to refund the amount collected from the petitioner with four weeks with 6% interest till date of repayment. The Deputy State Tax officer pay cost of Rs.10,000/- to the petitioner in 4 weeks.
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