ORDER

Heard the learned counsel for the petitioner and Sri. Vikram Huilgol, learned HCGP for respondent.

2. The petitioner is before this Court calling in question the detention order dated 10.08.2018 (Annexure-A) issued under Section 129(1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the CGST Act’ for short), the order of confiscation of goods and conveyance and demand of tax, fine and penalty dated 19.09.2018 (Annexure-A2) issued under Section 130 of the CGST Act and the rectification order dated 25.09.2018 (Annexure-A3) issued under Section 161 of the CGST Act, 2017.

3. The petitioner is a transporter represented by its Proprietor and was transporting certain goods as detailed in the order of confiscation. The said conveyance bearing registration No.KA-07-A-8570 was intercepted by the officers of the Revenue Department on 04.08.2018 at 6.55 a.m., near Nelamangala Toll Gate, Tumkur Road, Bengaluru.

Thereafter, the documents tendered by the driver of the vehicle were scrutinized, physical verification of the goods with reference to the documents furnished ensued and thereafter report has been drawn. After a verification of the goods in the conveyance, it was found that the consignment consisted of ready made garments worth of ₹ 33,35,335/- and the said consignment was not accompanied by valid documents like tax invoice and e-way bill and the same was in contravention of the provision of Section 68(1) of the CGST Act, 2017 and KGST Act, 2017.

On such basis the Revenue concluded that the same amounts to an attempt to avoid paying tax to the Government and same is liable to be levied as mandated under Section 129(1) of the CGST Act.

4. Learned counsel for the petitioner contends that the order stands vitiated on the sole ground that there is non-compliance of the mandate under the provisions of Section 129(4) of the Act and hence the same warrant interference at the hands of this Court.

5. It is contended that the order of detention under Section 129(1) of the CGST Act vide Annexure-A, the order of confiscation vide Annexure-A2 and rectification order vide Annexure-A3 to the writ petition have been passed without affording an opportunity of hearing to the petitioner. It is further contended that the objections put forth by the petitioner had not been taken into consideration while passing the orders, which are impugned herein. The arguments put forth are required to be rejected for the following reasons:

1) The petitioner is a transporter; and

2) The detention and seizure order has been passed after verification of the documents that were made available by the driver of the conveyance and inspection of goods has been carried out in the presence of the driver and one Sri.D.H.Naik, who is incharge of petitioner’s office at Bengaluru.

6. Learned HCGP would draw the attention of this Court to Annexure-A1 to the writ petition-the order of Demand of Tax and Penalty dated 22.08.2018. The Commercial Tax Officer (Enforcement), South Zone, Bengaluru, who is the Authority, has passed the order and categorically observed as follows:-

“Further, as per the request of the transporter, personal hearing was given through and endorsement dated 16.08.2018 on 17.08.2018. In response, Sri. Mahendra Jain, S/o Rajatmal, Proprietor of M/s. Bright Road, Logistics, Bengaluru appeared and was heard. At the time of hearing, he also filed a confirmation letter dated 14.08.2018 of M/s. Prathiksha Techologi, Sy. No.207,

Site No.03, Jayasingah Layout, Halagevaderahalli Viullage, Kengeri Hobli, Bengaluru Urban, Karnataka, pin-560098. GSTIN 29CKOPP0258F3ZR for the goods covered by the LR No.707, 801, 791, 769, 793, 790, 792, 796, 2733, 798, 794, 810, 797, 783, 768 and 800 total 16 LRs covering 24 Bundles of goods along with original photocopies of the connected LRs and cash bills. The contents of the letter are reproduced.”

7. From a plain reading of the order, it is apparent that the contention raised by the learned counsel for the petitioner, that no opportunity has been afforded under Section 129 (4) of the CGST Act stands falsified.

That apart, the petitioner has also placed reliance on the document marked as Annexure-H, which is allegedly addressed to the Commercial Tax Officer and by the said letter, the petitioner states as under:

“Kindly take this confirmation letter on record and pass the order under Section 129(1)(a) of the Act. The consignee will agree to pay the tax and penalty. Do the needful and oblige.”

8. From the above, it is apparent that the alleged owners have waived the right of hearing and have consented, levy of tax and penalty and have undertaken to pay as per the provisions of Section 129(1)(a) of the CGST Act. Despite the same, the petitioner has been heard in the matter.

9. Learned counsel for the petitioner would also endeavor to contend that none of the consignees have been heard in the matter.

10. The letter marked at Annexure-H dated 23.08.2018, itself is an answer to the contention raised by the learned counsel for the petitioner. In the letter, nowhere it is stated that the consignee requests for hearing and no material is placed on record to demonstrate the same. Apart from furnishing the letters of the consignees, there are no other details furnished by them. Further, the letter allegedly conveying the confirmation of the consignee to pay the due also does not inspire confidence in this Court. Infact the enclosures to the Annexure at page Nos.171, 173, 175 and 176, appears to be written in the same pen and by the same hand. These are factual aspects that has to be gone into and adjudicated by the fact finding authority. This Court does not find any good ground warranting interference with the impugned orders by exercising its jurisdiction under Article 226 of the Constitution of India.

11. The petitioner has placed reliance on the ruling of the Division Bench of the Kerala High Court reported in 2018 SCC Online Ker 2696 in the case of The Assistant State Tax Officer Vs. M/s. Indus Towers Limited, with particular reference to the observations made by the Court at Paragraph Nos. 26and 27, wherein the Division Bench at para 27 after taking note of the fact of declaration having been made even prior to the commencement of transport found it necessary to order for release of goods.

12. In the instant case, no declaration has been made by the consignees either prior to the commencement of transport or even after the goods have been seized. Hence, the case put forth by the petitioner does not inspire confidence in the Court to further adjudicate the issue. Hence, the said ruling is distinguishable and inapplicable to the instant case.

13. Learned counsel for the petitioner would submit that the rectification order at Annexure-A3 dated 25.09.2018 has been passed without affording an opportunity and the unilateral action is unsustainable.

14. Per contra learned HCGP would draw the attention of the Court to rectification order and contend that the rectification order was necessitated on account of omission of the Proper Officer to consider the objection/reply filed by the petitioner on 18.09.2018. That the same was omitted from consideration as the objections were filed on 18.09.2018 i.e., a day prior to passing the orders on confiscation and the same was not placed before him.

That the Proper Officer realizing the lacuna, has proceeded to pass the rectification order after taking into consideration the objections and hence, the same is nothing but an attempt by the Proper Officer to ensure that the objections filed and contention raised by the petitioner are considered in the proper perspective and in the manner required under the Act. Hence, no malafides can be attributed to the same.

15. Hence, this Court is of the opinion that the points raised by the petitioner does not survive for consideration in the light of the explanation placed before this Court.

16. As stated earlier, the matter requires adjudication of facts, which are seriously disputed by the parties. This Court in exercise of supervisory jurisdiction cannot enter upon and adjudicate factual issues under Article 226 of the Constitution of India, in the light of availability of an alternative remedy.

Accordingly, the petition stands rejected.