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2020 Supreme(Telangana) 676
IN THE HIGH COURT OF FOR THE STATE OF TELANGANA
M.S. Ramachandra Rao, T. Amarnath Goud, JJ.
Kamlesh Steels - Appellant
Versus
Deputy State Tax Officer And Others - Respondent
Writ Petition No. 2563 of 2020
Decided On : 11-11-2020
N. Kodanda Rama Rao, Advocate, J. Anil Kumar, Advocate
Headnote:
Constitution of India – Article 301 – Central Sales Tax Act, 1956 – Section 129(1), 67 CGST Act, 2017 - Telangana GST Act,2017 - Refund tax and penalty illegally - Detention of the vehicle –– Court opinion detention of the vehicle in spite of the vehicle carrying tax invoice and eway bill is in violation of the provisions of the Act, in particular Rule 68 of the Rules framed under the Act and the Circulars of Central Board of Indirect Taxes and Customs which are binding on 1st respondent and that the 1st respondent was not justified in collecting tax and penalty from the petitioner – Court are also of the opinion that the 1st respondent cannot rely on the fact that after release of goods the petitioner generated another e way bill on the same vehicle for the same value of the goods and marked it to be delivered – Held, This is because the very way bill shows that it is only for job work purpose and not intended by way of sale because after the job work is done, the material would be sent back to the petitioner – Also it is not in dispute that petitioner waited for two days after submitting explanation to the show-cause notice for an order to be passed by the 1st respondent, and when the 1st respondent failed to do so and also did not release the vehicle and the goods, the petitioner paid the tax and penalty under protest and got released the goods – So there was no voluntary payment of tax and penalty by petitioner for the 1st respondent to plead any estoppel against the petitioner – Writ Petition is allowed.
JUDGMENT
M.S. Ramachandra Rao, J. - The petitioner is a trader in Steels registered under the Central Sales Tax Act, 1956 ( for short 'the Act' ) having its registered office in Secunderabad.
2. It purchased, in the course of its business, material from M/s.Steel Authority of India Limited (SAIL), Kodambakkam, Tamil Nadu.
3. While the goods were in transit from the place of purchase to the petitioner's business premises at Secunderabad and when the carrier/goods vehicle was en route at Jeedimetla, it was checked and detained at IDA Jeedimetla on 22-01-2020 at 11.15 p.m.
4. A notice was issued Ex.P1- Form GST MOV-06 dt.22.01.2020/order of detention under Section 129(1) of the Act on the ground that prima facie the 'documents tendered were found to be defective' and that the goods were being transported from Salem in the State of Tamil Nadu to Distillery Road, Secunderabad, but the vehicle was checked at IDA Jeedimetla, Hyderabad. It is alleged that there is a 'mismatch between the goods in movement and the documents tendered' i.e., that the goods were checked at IDA Jeedimetla; and so the petitioner has to pay tax and penalty as per the provisions of the Act.
5. On receipt of information of detention of the vehicle from the driver of the vehicle, the petitioner replied vide Ex.P4 dt.23-01-2020 that the material from M/s SAIL at Salem in Tamilnadu is purchased by various dealers at Hyderabad for delivery at various destinations in Hyderabad; that the vehicles come to Hyderabad in groups through Outer Ring Road and all the trucks assemble at IDA Jeedimetla; and that from that place, the person in charge from M/s SAIL i.e. vendor, directs them to their destinations.
It was contended that the goods vehicle carrying material of petitioner on its way to its destination was stopped at IDA Jeedimetla and the driver of the vehicle was waiting for the person in-charge from M/s SAIL; and at that time, the vehicle was detained and checked in spite of the fact that the goods vehicle was carrying all required documents such as tax invoice, e.way bill dt.20-01-2020, which was valid from 21-01-2020 to 27-01-2020. Petitioner requested the respondents to release the vehicle along with goods.
6. There was no response to the said submission of the petitioner made to the 1st respondent.
7. So, the petitioner made another representation on 25-01-2020 to the 1st respondent requesting him to pass a formal order so that they could seek further remedy and in the meantime requested to release the vehicle along with goods on payment of tax as demanded by 1st respondent; and that they are making online payment of Rs.9,40,628/- towards one time tax of Rs.4,70,315/- and one time penalty of a likesum under protest.
8. Thereupon the vehicle carrying the goods and the vehicle was released on 25-01-2020.
9. But no formal order was passed by the 1st respondent assigning reasons why it he did not agree with the petitioner's objections/reply Ex.P4 dt.23.1.2020 to the Ex.P1 dt.22.1.2020/Order of detention.
Contentions of petitioner
10. Petitioner contends that the action of the 1st respondent in detaining the vehicle containing the goods of the petitioner on 22-01-2020 at IDA Jeedimetla and then demanding that petitioner should pay tax and penalty as per the provisions of the Act though all the required documents were available with the driver of the vehicle and later releasing it on 25-01-2020 only after collecting from the petitioner Rs.9,40,428/- towards tax and penalty, is illegal, arbitrary and violative of Article 14 of the Constitution of India as well as Article 301 of the Constitution of India, and seeks a direction to the 1st respondent to refund the tax and penalty illegally collected from the petitioner.
11. It is the contention of the petitioner that 1st respondent had forcibly taken Ex.P5 statement on 22.01.2020 from the driver of the vehicle carrying petitioner's goods that he was told by the petitioner to stay at Weigh Bridge in Jeedimetla and that pe
