ORDER

1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following relief(s):

“15(A) To issue writ of mandamus or any other appropriate writ, order or direction, directing to quash and set aside an order of Confiscation of Goods and Conveyance and demand of tax, fine and penalty issued under Form GST MOV-11 dated 21.10.2019 by respondent no.3 at Annexure-J.

(B) To issue writ of mandamus or any other appropriate writ, order or direction, directing to quash and set aside an order of detention of Goods and Conveyance in Form GST MOV-06 dated 06.09.2019 by respondent no.3 at Annexure-H.

(C) To issue writ of mandamus or any other appropriate writ, order or direction, directing the respondents to release the seized goods along with conveyance under Section 129(1)(a) of the Central Goods and Service Tax Act, 2017 on such terms and conditions which may be deemed fit and proper to this Hon’ble Court and in the interest of the petitioner.

(D) Pending admission, hearing and final disposal of this petition, to direct the respondents to release the seized goods along with conveyance provisionally under Section 129(1)(a) of the Central Goods and Service Tax Act, 2017.

(E) To pass any other and further orders as may be deemed fit and proper.

(G) To provide for the costs of this petition.”

2. The writ-applicant seeks to challenge the action of the respondents in declining to release the goods detained and seized under Section 129(1)(a) of the Central Goods and Service Tax Act, 2017 (for short the “Act”).

3. The writ-applicant claims to be having GSTIN/Uni: 24AWWPT7235Q1ZB. The writ-applicant is engaged in the business of Arecanut and other agriculture and non-agriculture commodities.

4. It is the case of the writ-applicant that he purchased a consignment of Arecanut worth ₹ 68,00,000/from a firm running in the name of Jaipuria Traders situated at Delhi. The details as regards the GST Registration etc. of the Jaipuria Traders have been furnished in Paragraph No.4 of the memo of the writ-application.

5. According to the writ-applicant, Jaipuria Traders transported the goods in a vehicle for being delivered at the place of the writ-applicant. The details of the goods and the requisite documents have been stated in the writ-application as under:

Invoice No.& Date	Bill of Landing/LRRR No.	Invoice Value (In Rs.)	Motor Conveyance No.	E-Way Bill No.
34 01.09.2019	1355 01.09.2019	64,94,000	HR-38-y-9388	7610 9028 1833

6. While the goods were in transit, the GST authorities intercepted the vehicle, detained the same and the goods were accordingly seized along with the conveyance. It is also the case of the writ-applicant that the driver of the conveyance had produced all the relevant documents relating to the goods and there was no contravention of any of the provisions of the Act or the Rules. It appears that the respondent no.3 issued a notice for confiscation of the goods, conveyance and levied of penalty under Section 130 of the Act.

7. We also take notice of the fact that the final order has been passed in FORM GST MOV-11, which is an order of confiscation of goods and conveyance and demand of tax, fine and penalty dated 21.10.2019.

8. Being dissatisfied with the order of confiscation passed by the respondent no.3 in FORM GST MOV-11, the writ-applicant is before this Court with the present writ-application.

9. Mr.Chetan Pandya, the learned counsel appearing for the writ-applicant, has put forward the following submissions to make good his case that the writ-application deserves to be allowed and the reliefs prayed for in the writ-application may be granted.

The submissions are as under:

“1. Under Rule 138A of the CGST Rules, the driver of the conveyance is required to carry invoice of bill of supply or delivery challan and E-Way bill which was carried by the driver which was certified by the State Tax Officer in FORM GST MOV-01 on 04.09.2019.

2. Inspite of that in FORM GST MOV-02 on 04.09.2019, same officer observed that documents tendered are defective and physical verification is required.

3. In physical verification in FORM GST MOV-04, no discrepancy was found between the goods loaded in the conveyance vis.a.vis invoice and E-Way bill. Hence, as per Clause 2(g) of the Circular dated 13.04.2018 issued by the Board exercising powers under Section 168(1) of the CGST, conveyance ought to have been forth with released by passing an order in FORM GST MOV-05.

4. Instead of that, conveyance was detained in FORM GST MOV-06 under Section 129 of the CGST on 06.09.2019. However, did not issue notice specifying tax and penalty payable in FORM GST MOV-07.

5. Straightway, notice issue FORM GST MOV-10 under Section 130 of CGST asking the supplier and buyer to appear on 11.09.2019 and copy was delivered to the driver only.

6. An order in FORM GST MOV-11 issued on 21.10.2019 confiscating goods and conveyance and that order was sent by email to the supplier and buyer.

7. Under Section 129 of the CGST read with Circular dated 13.04.2018, seizure order of the goods and conveyance and notice in FORM GST MOV-06 and FORM GST MOV-07 ought to have been issued simultaneously. Because entire proceeding is to be completed within 14 days as per Section 129(6) of the CGST failing which proceedings under Section 130 of CGST would start.

8. Once actions initiated under Section 129 of CGST, it has to be taken to its logical conclusion by issuance of notice under Section 129(3), hearing under Section 129(4) and conclusion of proceedings under Section 129(5) of CGST.

9. If proceedings under Section 130 CGST are proposed then after detention under FORM GST MOV-02 and after physical verification under FORM GST MOV-04 straightway notice under Section 130 of CGST under FORM GST MOV-10 could have been issued.

10. Section 129 of CGST applies only where any person transports any goods or stores any goods while they are in transit. This Section deals with detention, seizure and release of the goods and conveyance in transit. Therefore, detention and seizure are two different actions. Once it is seized, further process of release is mandatory to be followed.

11. Once the action of seizure under FORM GST MOV-06 was not required as there was no discrepancy found during physical verification in FORM GST MOV-04. Nothing prevented to the Department to release the conveyance forthwith in FORM GST MOV-05 and then taking appropriate actions for the reason FORM GST MOV-06 and FORM GST MOV-10 was issued.

12. In fact, while the goods and conveyance are in transit, it is the intention of the legislature that goods and conveyance must go on and entire procedure under Section 129 of DGST has to be completed within 14 days. With non obstinate clause, Section 129 is Code in itself and no appeal against any decision or order is maintainable and the tax and penalty paid under this Section shall not be able to available for further input tax credit. See Clause (I) of subsection (5) of Section 17 of the CGST.

13. Subsection of Section 107 of CGST does not say that on payment of amount under subsection 6, goods and conveyance can be released whereas sub-section 11, second proviso says that unless the appellant is given show cause notice under Section 73 or Section 74 of CGST against the proposed order for payment of tax i.e. not paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilized, no order can be passed.

14. Admittedly, no show-cause notice is issued in the present matter either under Section 129(3) of the CGST under FORM GST MOV-07 or under Section 73 or Section 74 of CGST.

15. The entire proceedings under Section 129 of CGST are envisaged to be completed within 14 days whereas limitation for filing appeal under Section 107 of CGST is there months and after further inquiry as may be necessary, the appeal is to be decided within a period of one year.”

10. The learned advocate appearing for the writ-applicant, in support of the aforesaid submissions, has placed strong reliance on the decision of this Court in case of Isha Trading Company Trough Proprietor Mustak Jamalbhai Sheikh Vs. State of Gujarat rendered in the Special Civil Application No.16901 of 2019 decided on 18.10.2019.

11. On the other hand, this writ-application has been vehemently opposed by Mr.Soaham Joshi, the learned Assistant Government Pleader appearing for the respondents. The learned AGP has raised a preliminary objection with regard the maintainability of this writ-application on the ground that as the final order of confiscation has been passed, the writ-applicant should prefer an application under Section 107 of the Act.

12. According to the learned AGP, even otherwise, on merits, the writ-applicant has no case. It is submitted that most of the submissions canvassed on behalf of the writ-applicant, as referred to above, do not merit consideration.

13. The learned AGP invited the attention of this Court to certain averments made in the affidavit-in-reply filed on behalf of the respondent. The learned AGP placed strong reliance on the following averments made in Paragraph Nos.6 to 12 of the affidavit-in-reply.

“6. I say and submit that, the petitioner by way of this present petition has sought a writ of mandamus and/or writ of certiorari or any other appropriate writ, order or direction, seeking direction to quash and set aside the order of confiscation of the goods and conveyance. The petitioner has also sought for quashment of MOV-11 dated 21.10.2019 issued by the respondent no.3.

7. I say and submit that the vehicle in question was stopped by the respondent authorities near Amirgadh Check Post and thereafter the authorities issued MOV-1 as well as MOV-2 on the very same day when the vehicle in question was stopped on 04.09.2019, thereafter, the authorities issued MOV-4  on 06.09.2019, wherein the goods in question were duly verify with the invoices, it is pertinent to mention that MOV-4  pertains to only verification of the quanitity of the goods with the invoices.

8. I say and submit that, thereafter, EWB-3 was uploaded on the portal. Hence, prima facie considering the invoices and the E-Way Bills in comparison with the quantities of the goods, the authorities did not find any discrepancy at the very threshold, but, on 05.09.2019, a search was conducted on the business premises of the petitioner.

9. I say and submit that the said search dated 05.09.2019 was proposed in lieu of the fact that when the Mobile Squad had verified the invoices as well as E-Way Bills of the petitioner and compared the same with its on line portal, it was found that the petitioner in a short span had generated a seizable number of E-way Bills. The petitioner had obtained the registration under the GST on 22.04.2019 and the on line portal details of the petitioner which is hereby placed on record which reveals number of E-Way Bills. Hence, qua the petitioner, whose movement of goods is in cloud when the search was conducted in the business premises of the petitioner, it was found that no such business premises was in existence and the very said address given in the invoices was also incorrect. Meaning thereby, as mentioned in the invoices, there was no shop in the name of Aashirwad Marketing and a very vague address was given in the invoice (Annexure herewith and marked as ANNEXURER-1 is the copy of the search report). It is further required to be noted that the search report could not have been given to the petitioner as he was not found at the very given address.

10. I say and submit that, on the basis of the said search report, the deponent herein issued MOV-6 on the driver of the vehicle in question which is duly received and the drive through what’s up message on Mobile No.7017826127 had sent the same to the seller of the goods in question, as per the invoices the goods have been transported from the New Delhi and the supplier was Jaypuriya Traders. It is further required to be noted that a detailed reasoning has been given in MOV-6 by the respondent authorities. (Annexure herewith and marked as ANNEXURER-2 is the copy of MOV-6).

It is further required to be noted that after issuance of MOV-6 to the driver it was forwarded to supplier Jaypuriya Traders by the driver himself till date no representation has been received from the petitioner nor the supplier to prove the genuineness of the transaction.

11. I say and submit that even the present petition has been preferred through power of attorney holder and the cause title of the petition also reveals the very same address which is reflected in the said invoice and as per the search details Aashirwad Marketing is not having its office at “1st Floor, 325, Nr. Kazipur Garden, Opp. Hathisinh Derasar, Shahibaugh, Ahmedabad.” And even the address of the power of attorney holder possesses the very same address.

12. I say and submit that in view of the said facts, the authorities have doubted the genuineness/existence of the purchaser viz. the petitioner herein, the authorities have issued MOV-10 on 18.10.2019 which contains the reason that the petitioner is not existing which is based on the search report dated 05.09.2019. It is required to be noted that MOV-10 has been served upon the Driver as well as also through Email address upon both the petitioner and the supplier viz. Jaypuriya Traders.

But, till date, the authorities have not received any response qua issuance of MOV-10 resultantly considering the said facts, it is a fit case falling within the purview of section 130 of GST Act and hence, the authorities have issued MOV-11 on 21.10.2019.”

14. In such circumstances, referred to above, the learned AGP prays that the transaction is highly doubtful and it could be said that the intention was to evade the tax.

15. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for our consideration is, whether we should entertain this writ-application or relegate the writ-applicant to avail of the alternative remedy of preferring a statutory appeal before the appellate authority under Section 107 of the Act.

16. Having regard to the facts of the present case, we are of the view that the writ-applicant should prefer an appeal under Section 107 of the Act before the concerned appellate authority. We would not like to express any opinion on the merits of any of the submissions. We expect the appellate authority to deal with each of the submissions canvassed on behalf of the writ-applicant, as commented above.

17. The learned advocate appearing for the writ-applicant makes a statement that his client shall prefer an appeal at the earliest.

18. We take notice of the fact that the period of limitation is on the verge of expiring. In such circumstances, the writ-applicant should act promptly and prefer an appeal at the earliest. Once, the appeal is preferred, we direct the appellate authority to look into the same and decide the same on merits keeping in mind each of the submissions which have been canvassed before us. As specific submissions have been raised, it is expected of the appellate authority to deal with such submissions threadbare accordingly. While deciding the appeal, the appellate authority shall keep in mind two judgments of this Court one in the case of Insha Tading Company (supra) and another in the case of Synergy Fertichem Pvt.Ltd. Vs. State of Gujarat (supra).

19. Upon registration of the appeal, the same shall be heard and disposed of with an appropriate order within a period of 15 days from the date of conclusion of the hearing.

20. We take notice of the fact that the goods and the conveyance came to be seized way back on 04.09.2019. It has been almost 5 months. In such circumstance, we direct the appellate authority to give top priority to such appeal and decide the same. It goes without saying that the appellate authority shall give an opportunity of hearing to the writ-applicant.

We also direct the appellant authority to look into the Circular No.41/15/2018-GST issued by the Government of India, Ministry of Finance, dated 13.04.2018, in the form of instructions/guidelines.

21. Having regard to the provisions of law, two appeals will have to be filed, one by the owner of the goods for the purpose of getting the goods released, and the another appeal will have to be filed by the owner of the vehicle whose vehicle has been detained and seized.

22. A copy of this order shall be made available to the learned AGP Mr.Soaham Joshi for its onward communication.

With the above, the writ-application stands disposed of. Direct service is permitted.