Nanhe Khan Timber Stores vs. State Of U.P. And Others
(Allahabad High Court, Uttar Pradesh)

Case Law
Petitioner / Applicant
Nanhe Khan Timber Stores
State Of U.P. And Others
Allahabad High Court
Uttar Pradesh
Oct 29, 2021
Order No.
Writ Tax No. – 711 of 2020
TR Citation
2021 (10) TR 4795
Related HSN Chapter/s
Related HSN Code


Heard Shri Praveen Kumar, learned counsel for the petitioner and Shri Jagdish Mishra, learned Standing Counsel appearing for the respondent-State.

By means of this petition, the petitioner seeks quashing of the order dated 29.03.2018 passed by the respondent no.4-Assistant Commissioner, Mobile Squad Unit, Bulandshahr under Section 129(3) of the U.P. Goods and Services Tax Act, 2017 UPGST Act . Further challenge is to an order dated 03.09.2020 passed by the respondent no.3-Additional Commissioner, Grade-2 (Appeal), Commercial Tax, Judicial, Bulandshahr whereby the appeal filed by the petitioner under Section 107 of the UPGST Act, has been rejected on the ground of limitation.

Though a counter affidavit is on record, the learned counsel for the petitioner states that since the pure question of law relating to the jurisdiction of the authority, who passed the order dated 29.03.2018, is under consideration, no rebuttal of the counter affidavit on the points of fact is required under the facts of the present case.

It is stated in the petition that the matter pertains to the Assessment Year 2017-18. On 27.03.2018, e-way bill under the provisions of the Central Goods and Services Tax Act, 2017 was generated for the transport of timber that was being transported from Delhi to Sikandrabad against Tax Invoice No.336 dated 27.03.2018.

The consignment of timber was loaded on Truck bearing Registration No.DL 1 M 9725. It is contended that the central e-way bill was downloaded on 27.03.2018 at 9.41 pm and the same was accompanying the goods during the transit. In the morning of 28.03.2018, around 6:00 am, the vehicle was intercepted by respondent no.4 and an inspection was conducted. Post inspection, the vehicle and the goods were detained on the ground that the e-way bill-01 prescribed under the UPGST Act is not available with the goods. Accordingly, an order of seizure under Section 129(3) of the UPGST Act was passed. Pursuant to the issuance of notice to the petitioner, a reply was submitted and the petitioner has also filed a copy of the e-way bill-01 downloaded on 28.03.2018. The demanded amount of ₹ 96,732/- was deposited by the petitioner on 28.03.2018 itself. It is contended that the order dated 29.03.2018 passed under Section 129(3) of the UPGST Act was never communicated to the petitioner and due to the bereavement in his family, he could not appear before the authority. On coming to know about the order, he applied for the same on 06.12.2019 and was provided a certified copy of the order dated 12.12.2019 and thereafter the appeal was filed. The appellate authority, in the teeth of the judgment of this Court in the case of M/s Patel Hardware vs. Commissioner of SGST 2019 UPTC (Vol. 101) 1, proceeded to hold that the communication was duly made to the petitioner and rejected the appeal.

The learned counsel for the petitioner has relied upon a decision of a Division Bench of this Court in M/S Godrej and Boyce Manufacturing Co. Ltd Vs. State of U.P. and others 2018 U.P.T.C. [Vol. 100] 1206 and another judgement dated 4.10.2021 passed by a Division Bench of this Court in the case of M/S Varun Beverages Limited Vs. State of U.P. and 2 others Writ Tax No. 1670 of 2018.

It is contended that by the impugned orders, penalty has been imposed with respect to the goods being transported without e-way bill- 01 under the UPGST Act read with rules framed thereunder.

It has been submitted, during the period 01.02.2018 to 31.03.2018 the requirement of e-way bill under UPGST Act read with Rules framed thereunder was unenforceable. Therefore, neither seizure of goods was justified nor can the penalty be sustained. Also, the petitioner’s appeal against the order dated 29.03.2018 came to be dismissed on account of delay beyond the period eligible for condonation of delay.

Having heard the learned counsel for the parties and perused the record, so far as the matter is squarely covered by the decisions of this Court in M/s Godrej and Boyce Manufacturing Co. Ltd. (supra) M/s Varun Beverages Ltd. (supra), the present writ petition is allowed. The impugned order dated 29.03.2018 and also the order dated 03.09.2020 are hereby quashed.

Any amount deposited by the petitioner may be refunded in accordance with law within a period of one month.

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