Point of Law : It is always open to person who suffers proceedings under 129 of CGST/SGST Acts to challenge hose proceedings if he feels that demand has been illegally raised on him.

JUDGMENT :

The only point that arises for consideration in these cases is whether a person who opts to make payment in terms of Clause (a) of Sub-Section (1) of Section 129 of the Central Goods & Services Tax Act / State Goods & Services Tax Act (hereinafter referred to as the ‘CGST/SGST Acts’) to get goods/conveyance/documents detained or seized in proceedings under Section 129 released is deprived of his right to file an appeal against the proceedings. While the petitioners in these cases contend for the position that they are not deprived of such right, the State contends that on account of the stipulation in sub-section (5) of Section 129 of the CGST/SGST Acts, on payment of amounts under sub-section (1), all proceedings which are the subject matter of a notice under sub-section (3) of Section 129 “shall be deemed to be concluded”.

2. In order to consider the issue, it is not necessary to refer to the facts of these cases in any detail. It would be sufficient to notice that goods/conveyance of the petitioners were the subject matter of detention/seizure under Section 129 of the CGST/SGST Acts and the petitioners in these cases opted to pay amounts in terms of the pre-amended provisions of Section 129(1)(a) of the CGST/SGST Acts, to get the goods/conveyance released pending finalisation of proceedings. On payment of the amount, the goods and the conveyance were released as contemplated by sub-section (1) by issuing Form MOV-05. While an order was issued in Form MOV-09 (issued under sub-section (3) of Section 129), a corresponding summary of order/demand in form MOV-07 was not issued. As a result, the petitioners are not in a position to approach the appellate authority by filing an appeal under Section 107 of the CGST/SGST Acts.

3. Sri. R. Jaikrishna, the learned counsel for the petitioners submits that on the reading of sub-section (3) of Section 129 CGST/SGST Acts with Rule 142 (5) of the CGST/SGST Rules and the provisions of Ext.P5 circular No.41/15/2018-GST, dated 13.04.2018, the order under sub-section (3) of Section 129 issued in Form MOV-09 should have been accompanied by a summary of the order in Form MOV-07. It is submitted that without a summary of the order in Form MOV-07, the petitioners are disabled from filing an appeal as the system accepts an appeal only if there is a summary of an order issued in Form MOV-07.

4. Dr. Thushara James, the learned Senior Government Pleader appearing for the respondents would point out that on an assessee or a person who is the subject matter of proceedings under Section 129 CGST/SGST Acts, opting to make payment of tax and penalty in terms of Section 129(1)(a), the proceedings under Section 129 come to an end. She states that this is the effect of sub-section (5) of Section 129. She states that payments made under Section 129(1) (a) are paid and accepted in Form DRC-03, which is a form for voluntary payment and such payments cannot be the subject matter of any refund or adjudication at a later point of time. It is submitted that on payment of the amount under Section 129(1)(a), the entire proceedings should be treated as having concluded and the payment represents an acceptance of the fact that the discrepancies noted by the intercepting officer and leading to the initiation of proceedings under Section 129 were well founded. It is submitted that the provisions of Rule 142 of the CGST Rules deal with the situation where the person concerned seeks to continue with the proceedings by opting to provide a Bank guarantee under Section 129(1)(c), in which case the provisions of sub-section (5) of Section 129 do not apply and the proceedings cannot be treated as concluded. It is submitted that once payment is made under Section 129(1)(a), there is no way in which a summary of order/demand can be generated in Form MOV-07. The learned Senior Government Pleader also points out that the wordings of sub-rule (5) of Rule 142 clearly suggest that unless there is a demand for tax or interest or p