1. Learned counsel for the petitioner has relied on the judgment passed by this Court in Sakeel Father/o Shri Wali Mohammad Vs. State Tax Officer: SBCWP No.13485/2018, decided by this Court on 04.07.2018 and submits that this Court has after taking into consideration the provisions of Section 129 of the Central Goods and Services Tax Act, 2017 (for short, ‘CGST’) has observed that if goods have been seized proceedings under Section 130 of the Act can only be initiated after a fair opportunity is given to the concerned for depositing of Tax or penalty as assessed. Further, this Court after taking into consideration the provisions of Rule 140 of the CGST Rules 2017 has observed that the seized goods can be released on provisional basis after execution of bond for the value of goods and furnishing of security in form of Bank Guarantee equivalent to the amount of applicable tax, interest and penalty payable.

2. Learned counsel submits that without giving appropriate opportunity that respondents have now proceeded to confiscate the goods and conveyance by the order dated 09.03.2021.

3. Learned counsel submits that while there is a provision of filing of an appeal against the order of confiscation so far as the vehicles and goods are concerned, they may be provisionally released in terms of Rule 140(1) of the CGST Rules.

4. Per contra, learned counsel appearing for the respondents submits that the writ petition was preferred against the show cause notice under Section 129(3), however, thereafter order of demand of Tax and penalty has been issued under Section 129 on 08.02.2021 and thereafter show cause notice was issued for confiscation on 09.02.2021 and final order of confiscation has been passed on 09.03.2021. In the meanwhile, the petitioner did not deposit the penalty as demanded and the demand of Tax. The orders passed by the Revenue are not under challenged before this Court, as appeal is available for redressal of the grievance of the petitioner, he may approach the Appellate Forum.

5. I have considered the submissions.

6. While the petitioner assailed the initial action of the respondents before this Court and challenged the orders dated 22.01.2021 and 25.01.2021, it appears that during the pendency of the writ petition, the respondents proceeded and passed an order of demand of Tax and penalty on 08.02.2021. In the said order, 14 days time was given to deposit the amount from the date of detention and as 14 days had lapsed on the next date i.e. 09.02.2021, notice of confiscation of goods was initiated and final confiscation of order has been passed on 09.03.2021. Admittedly, the goods were seized on 22.01.2021. Thus, on the date when the order of demand of tax and penalty was issued on 08.02.2021, 14 days time had already been lapsed. Virtually, the petitioner has not been given any chance to deposit the tax and penalty.

7. However, since final order under Rule 130 and goods have already been seized on 09.03.2021. This Court would not make any further observation as it would affect the result of the appeal, however, this Court finds that the provisions of Section 129 are independent of Section 130 and before any decision is taken under Section 130, the power is available under Section 129 to release the goods provisionally in terms of Rule 140(1) provided the concerned owner submits the requisite as required under Section 140(1).

8. Since this Court has observed that no opportunity was given for depositing the amount of demand of tax and penalty while issuing the order dated 08.02.2021, it would be in the fitness of the things and in the interest of justice that the petitioner be given a chance to avail the provisional release of goods and vehicle in terms of Rule 140(1).

9. Hence, while disposing of this writ petition leaving it for the petitioner to challenge the order dated 09.03.2021 and the other orders before the Appellate Authority, it is directed that if the petitioner fulfills the conditions as laid down under Rule 140(1) of the CGST Rules of 2017, the respondents shall release the goods provisionally subject to the final outcome of the appeal for further proceedings which may be available to the petitioner under the Act.

10. It is always expected that the Appellate Authority to decide the appeal at the earliest, preferably within a period of two months. The Bank Guarantee which the petitioner may submit in terms of Rule 140(1) shall not be encashed till the final disposal of the appeal as observed hereinabove.

11. The writ petition as well as stay application stand disposed of accordingly.