PER : HONOURABLE MR. JUSTICE N.V.ANJARIA

Heard learned advocate Mr.Maulik Vakhariya for the petitioner and learned AGP Mr. Krutik Parikh for the respondent State with regard to interim relief.

2. While issuing Rule in this matter by order dated 06.07.2022, the controversy involved was noticed and set out as under –

“2. The challenge in this petition is addressed to order dated 31.5.2022 passed by the State Tax Officer (2) Bhilad Mobile Squad, Division-8, Vapi, purported to have been passed in exercise of powers under Section 130 of the Goods and Services Tax Act, 2017.

3. The goods which were stated to be in transit came to be confiscated by intercepting the transportation. The total demand as per the confiscation order was raised to the tune of Rs.93,34,360/-. Penalty on the goods was sought to be levied to the extend of Rs.12,35,430/- and penalty on conveyance was also imposed of the equivalent amount. The fine in lieu of confiscation was mentioned in order to the tune of Rs.68,63,500/-.

3.1 In para 5 of the memorandum of the petition, the petitioner has raised certain questions of law to which learned advocate for the petitioner invited attention to further contend that the exercise of powers by the authority concerned under Section 130 of the Act could be said to be without authority in law inasmuch as the goods were in transit when intercepted and confiscated. It was submitted that when the goods were in transit, the powers for the authority to take action have to stand from Section 129 and not Section 130 of the Act.

3.2 The question which falls for consideration is whether when the goods are in transit, the authorities are entitled to invoke Section 129 of the Act or not. Learned advocate for the petitioner submitted in furtherance of his submission that Section 129, beginning with the non obstante clause is goods specific provision where as Section 130 is assessee specific.

4. It is true that against the order impugned in this petition, the appeal is available under Section 107 of the Act however if the contention of the petitioner that in the facts of the case the the powers exercisable were under Section 129 only and invocation of provisions of Section 139 was erroneous, it could turn out to be jurisdictional aspect. Therefore, the contention canvassed by petitioner raises a jurisdictional issue.”

2.1 In Civil Application for stay, notice as to interim relief was issued.

2.2 The learned advocate for the petitioner submitted that in Special Civil Application No. 8353 of 2012, which involved similar controversy, while issuing Rule in the said petition, this Court granted interim relief to release the goods and conveyance of the petitioner upon certain conditions. It was submitted that the petitioner is ready to abide by the conditions on the same line.

2.3 Learned AGP could not dispute the aforementioned order dated 01.07.2022 in the said Special Civil Application No. 8353 of 2012.

3. What is prayed by the petitioner herein by way of the interim relief is to stay the operation and implementation of the order in FORM MOV-11 No. 182 dated 31.05.2022, confiscating the goods and conveyance of the petitioner and demanding tax, fine and penalty. While a blanket stay of the said order as prayed for cannot be granted, relief regarding release of goods and conveyance could be considered in favour of the petitioner upon imposing conditions.

4. As could be seen from the impugned order, the penalty amount is Rs. 12,35,430/-. The fine and other charges are demanded to the extent of Rs.68,63,500/- and the tax is demanded of Rs.12,35,430/-.

5. By way of interim relief, it is directed that the respondents shall release the goods and conveyance of the petitioner, confiscated and detained pursuant to the aforementioned order No. 182 dated 31.05.2022, subject to the following conditions –

(i) The petitioner deposits the amount of tax of Rs. 12,35,430/-.

(ii) The petitioner deposits the amount of penalty to the tune of Rs. 12,35,430/-.

(iii) The petitioner furnishes bond to the tune of Rs. 68,63,500/- towards the amount of fine.

5.1 Upon compliance of the above conditions by the petitioner, the goods and conveyance of the petitioner be released by the authorities.

6. This order of interim relief shall remain part of the main matter.

7. The Civil Application is allowed and disposed of in the aforesaid terms.

D.S. to respondents no.3 and 4 permitted.