L. Narayana Swamy, Chief Justice (Oral)
The petitioner is a Company incorporated under the Companies Act, 1956 having its Corporate and Head Office at Kolkata in the State of West Bengal.
2. It is averred in the writ petition that the petitioner- Company has entered into a contract with GMR Bajoli Holi Hydropower Pvt. Ltd. (hereinafter referred as “GMR”) to supply the hydro mechanical plant and equipment complete including mandatory spare and mandatory tools and tackles complete for 3×60 MW Bajoli Holi Hydro Electric Project (for short “the project”) and the said project is situated in the State Himachal Pradesh. It is further averred in the petition that for the purpose of execution of the said project, the petitioner-Company imported some equipments from Netherland to India and cleared the goods at JNCH Nhava Sheva Port, Mumbai on payment of applicable import duties including IGST. The petitioner has directly sent the goods from Mumbai to the project site situated in the State of Himachal Pradesh. It is also averred that for the purpose of movement of goods from Mumbai to Himachal Pradesh, the transportation was arranged through three vehicles on the basis of bill of entry, delivery challans and accordingly three different e-way bills were generated.
3 Out of the aforesaid three vehicles, the concerned Officer intercepted and inspected one vehicle carrying e-waybill No. 8111 1951 2407, dated 09.10.2020, on 27.11.2020 at about 3.00 p.m. at Cheema Nala, District Chamba, HP and during the course of inspection, he found that the person-in charge of the conveyance was carrying the e-way bill generated under the strength of delivery challan and was not covered through tax invoice. Thereafter, show cause notice under Section 129(3) of the CGST Act, 2017 read with Section 20 of the IGST Act, 2017 in Form GST MOV-07 , dated 27.11.2020 was issued to the petitioner. The petitioner-Company has challenged the said show cause notice in the present writ petition on various grounds including that the respondents do not have jurisdiction to pass impugned detention order/notice.
4. On the other hand, learned Senior Additional Advocate General submitted that this petition does not survive for consideration for two reasons, firstly, the impugned show cause notice is appealable and secondly, the petitioner-Company cannot invoke writ jurisdiction as in the present petition, only a show cause notice has been challenged and the petitioner-Company is required to file reply to the said show cause notice.
5. After arguing for a while, learned Counsel for the petitioner-Company submit that though the reply to the show cause notice has been filed, but the respondents intend to file a detailed reply to the show cause notice. They pray that until and unless the detailed reply to the show cause notice is not perused and considered by the respondents, they may be directed not to determine the tax under the GST Act.
6. We have heard learned Counsel for the parties and have perused the entire file carefully.
7. In the instant writ petition, it is apparent that by the medium of this writ petition, only a show cause notice has been challenged by the petitioner-Company. Though the petitioner- Company has filed reply to the said show cause notice, but it intends to file a detailed reply to the said show cause notice.
8. In view of the above, without expressing any opinion on the merits of the case, we deem it proper to dispose of this writ petition, at this stage, reserving liberty to the petitioner-Company to file detailed reply to the show cause notice in question, enabling the respondents to determine the tax under the GST Act. In the event of filing reply to the show cause notice by the petitioner- Company, the respondents are directed to consider the same and pass appropriate order. In the meantime, the respondents are directed not to finalize the imposition of penalty.
9. At this stage, learned Counsel for the petitioner submit that since the machinery is imported from abroad and if the same is not fixed and used, it would lead to logistic misuse. If that is the case, we direct the respondents to immediately release the machinery, equipments etc. subject to deposit of bank guarantee or any other acceptable method or measures including demand draft, net banking etc., to the satisfaction of the respondents.
10. With the aforesaid observations, the writ petition is disposed of alongiwth pending application(s), if any.
Copy dasti.