JUDGMENT

Pankaj Bhatia, J.

Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. Present petition has been filed by the petitioners with the allegations that petitioner no.1 placed an order for supply of mixed ready-made garments, which were being transported by petitioner no.2. It is stated that on 13.09.2022 the goods while in transit were intercepted and a physical verification report was prepared on 17.09.2022 in form GST MOV-04 and no discrepancy was found in the quantity of the goods in question.

3. It is stated that on 21.09.2022, a detention order was passed detaining the goods in question mainly on the ground that the goods were without E-Way bill. It is argued that although under Section 129 (3) of U.P. GST Act (hereinafter referred to as 'the Act'), there is a prescription for issuance of a notice in Form GST MOV-07, however, the notice was not issued in the format as prescribed but was issued by an authority whose name is not even specified as the order itself recorded that the same was issued for the authority and not by the authority.

4. It is stated that in reply to the letter issued to the petitioner, the petitioner filed a detailed reply denying the allegations which led to passing of an order dated 26.09.2022 (Annexure - 6). Aggrieved against the said order, the petitioner preferred an appeal which too was dismissed by means of an order dated 19.10.2022. The said two orders are under challenge in the present petition.

5. Contention of learned counsel for the petitioner is that in the event Part - B of the E-Way Bill was not being carried, no penalty is imposable. He further argues that in any event, the detaining authority does not have the jurisdiction to value the goods as has been done. In support of the same, he places reliance on the Circular dated 09.05.2018.

6. In the light of the said two submissions, learned counsel for the petitioner argues that the order imposing the penalty that too on valuation without jurisdiction is wholly bad in law.

7. He further argues that even for the sake of arguments, it is presumed that the petitioner is liable, the provisions of Section 129 (1)(a) of the Act can be attracted in this case and not Section 129 (1)(b) of the Act as admittedly the petitioner is the owner of the goods in terms of the invoice issued in favour of the petitioner. He further argues that it is well settled that if the petitioner is either a consignor or a consignee, he has to be treated as a owner of the goods and thus, the provisions of Section 129 (1)(b) of the Act are not invokable as has been done by the department.

8. In view of the said submission, he places reliance on the judgment of this Court in the case of M/s Riya Traders v. State of U.P. & Ors.; Writ Tax No.28 of 2023 decided on 17.01.2023 as well as in the case of M/s Margo Brush India and Others v. State of U.P. & Anr.; Writ Tax No.1580 of 2022 decided on 16.01.2023. This Court in Para - 3 of the judgment in the case of M/s Margo Brush India (supra) has held as under:

"3. The argument is that it is a case in which the goods in transit were accompanied by proper documents. When show cause notice was issued to the driver of the vehicle, the petitioners had filed their replies. In terms of the provisions of Section 129(1)(a) of the Act, in case, the owner of the goods comes forward, the penalty is to be levied upon him. The penalty can be levied under section 129(1)(b) of the Act, only if the owner of the goods does not come forward. In the case in hand, vide impugned order the penalty has been levied under Section 129(1)(b) of the Act, which is not applicable. He has als