# Bharti Airtel Ltd v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-19
- **Case number:** Writ-C No. 6620 of 2021
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharti-airtel-ltd-v-state-of-u-p-ors-47889
- **Pages:** 10

## Headnote

Civil Law - Central Goods and Services Tax
Act, 2017 - Sections 67, 73 & 129 - Section
129 provides for Detention, seizure and
release of goods and conveyances in
transit - When goods are detained, they
can be released upon the payment of the
amount specified in clauses (a), (b), and
(c) of Section 129(1) of the Act by the
owner of the goods or any other person
coming forward to pay - but where the
owner of the goods or the person does not
volunteer to pay the penalty as prescribed
under clause (a), (b), (c) of Section 129
(1) of the Act in such case the department
is will equipped to initiate proceedings by
taking recourse to Section 73, 74, 75 of
the
Act
read
with
section
122
for
determination of tax and the penalty
leviable - however there is no provision
u/s 129 for determination of tax due,
which can be done only by taking recourse
to the provisions of Section 73 or 74 of the
CGST Act, as the case may be - In the
present case, the department proceeded
to determine the tax liability as well as
penalty under the provisions of Section
129 of the Act, which is not contemplated
or intended - Impugned Orders quashed
and set aside & it was directed that the
amount paid by the petitioner for release
of the goods shall be refunded to the
petitioner (Para 27, 28)

Allowed. (E-5)

List of Cases cited:

VSL Alloys (India) Pvt. Ltd.Vs St. of U.P & ors.
reported in 2018 (67) NTN-DX 1

## Text

92 INDIAN LAW REPORTS ALLAHABAD SERIES
delay was not condoned in filing the second
appeal and Second Appeal was entertained
on behalf of the Ex-pradhan who was not
empowered to file second appeal in view of
the provisions contained in para Nos.128
and 131 of Gaon Sabha Manual as laid
down in Jagdish Pandey (Supra), the
impugned judgments and orders dated
15.04.2005 and 31.03.2005 passed by the
respondent No.1 (Second Appellate Court)
are hereby set aside and the judgment
passed by the first appellate court dated
22.11.2003 is hereby maintained. The Writ
petition stands allowed. No order as to
costs.
----------
(2022) 10 ILRA 92
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.10.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 6620 of 2021

Bharti Airtel Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Manju Lata Mishra, Ashish Mishra

Counsel for the Respondents:
C.S.C.

Civil Law - Central Goods and Services Tax
Act, 2017 - Sections 67, 73 & 129 - Section
129 provides for Detention, seizure and
release of goods and conveyances in
transit - When goods are detained, they
can be released upon the payment of the
amount specified in clauses (a), (b), and
(c) of Section 129(1) of the Act by the
owner of the goods or any other person
coming forward to pay - but where the
owner of the goods or the person does not
volunteer to pay the penalty as prescribed
under clause (a), (b), (c) of Section 129
(1) of the Act in such case the department
is will equipped to initiate proceedings by
taking recourse to Section 73, 74, 75 of
the
Act
read
with
section
122
for
determination of tax and the penalty
leviable - however there is no provision
u/s 129 for determination of tax due,
which can be done only by taking recourse
to the provisions of Section 73 or 74 of the
CGST Act, as the case may be - In the
present case, the department proceeded
to determine the tax liability as well as
penalty under the provisions of Section
129 of the Act, which is not contemplated
or intended - Impugned Orders quashed
and set aside & it was directed that the
amount paid by the petitioner for release
of the goods shall be refunded to the
petitioner (Para 27, 28)

Allowed. (E-5)

List of Cases cited:

VSL Alloys (India) Pvt. Ltd.Vs St. of U.P & ors.
reported in 2018 (67) NTN-DX 1

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Supplementary Affidavit filed by
the petitioner is taken on record.

2. Heard Sri Ashish Mishra, the
counsel for the petitioner and the learned
Standing Counsel, who appears for the
respondents.

3. The present petition has been filed
challenging the order dated 17.10.2018
purportedly to be passed in exercise of the
power under Section 129 of the CGST Act
as well as the order dated 31.10.2020
passed by the respondent no.4 whereby the
appeal preferred by the petitioner has been
dismissed.

4. The counsel for the petitioner states
that as the Tribunal contemplated under the
10 All. Bharti Airtel Ltd. Vs. State of U.P. & Ors.
93
Act has not been constituted, as such, the
petitioner is availing the remedy under
Article 226 of the Constitution of India and
the same is being entertained in view of the
admitted
position
that
the
Tribunal
contemplated under the Act has not been
constituted till date.

5. The facts, in brief, are that the
petitioner
company
is
a
company
incorporated under the Companies Act and
has a warehouse situate at Lucknow as well
as at Haryana Gurgaon. The company for
the purposes of transportation of the goods
from
Lucknow
to Haryana
hired
a
transporter for transporting the said goods
on which a bilty tax invoice and Part-A of
the e-way bill were generated and are
contained in Annexure no.1. It is stated that
the petitioner paid the tax as were required
under the IGST Act, however, on account
of an inadvertence Part-B of the e-way bill
was
not
generated
prior
to
the
commencement of the transport of goods. It
is on record that the driver commenced the
journey on 24.09.2018 at 9.30 pm from the
warehouse of the petitioner company and
was intercepted on 25.09.2018 at 4.43 am.

6. The case of the petitioner's
company is that although the Part-B of the
e-way bill was not generated, the same was
attributable to the transporter, however,
before the goods were actually seized, the
e-way bill was generated at about 7.34 am
in the morning on the next date i.e.
25.09.2018. It is stated that despite the fact
that the petitioner had uploaded the Part-B
of the e-way bill at about 7.34 am, the
respondents authorities proceeded to pass a
detention order on 29.09.2018 mainly on
the ground that till 4.43 am on 25.09.2018,
the Part-B of the e-way bill had not been
generated.

7. The counsel for the petitioner has
drawn my attention to the inspection
memo of the vehicle in question which
was carried out on 29.09.2018 at about
5.47 pm.

8. As the goods were not being
released, the petitioner approached this
court by filing a Writ Petition Misc. Bench
No.33276 of 2018, which was disposed off
on 16.11.2018 directing the release of the
goods on the petitioner furnishing the
security in terms of section 129 read with
section 67 of the CGST Act 2017. It is
stated that in terms of the said order, the
goods were released on the petitioner
furnishing
a
bank guarantee
to
the
respondents on 07.12.2018 amounting to
Rs.1,25,49,539/-.

9. It is stated that prior to the release
of the goods, a show cause notice was
issued to the petitioner company on
29.09.2018,
which
is
contained
in
Annexure no.9 whereby the petitioner was
called upon to show cause as to why the
proposed tax and the penalty may not be
levied against the petitioner. The said show
cause notice was issued under section 129
(3) read with section 20 of the CGST Act.
The petitioner submitted a detailed reply to
the show cause notice and prayed that the
show cause notice be dropped mainly on
the ground that the tax was duly paid as
was required under the Act and the Part-B
of the e-way bill was also uploaded prior to
the passing of the detention order. It is
claimed that despite the submission of the
reply, the department without considering
the same imposed a tax liability of
Rs.62,74,769.40 and levied an equal
penalty of Rs.62,74,769.40 by means of an
order dated 17.10.2018 as contained in
Annexure no.12.
94 INDIAN LAW REPORTS ALLAHABAD SERIES

10. It is argued that the petitioner was
never served with a copy of the order dated
17.10.2018, as such, the petitioner could
not prefer the appeal within the prescribed
time as a result whereof the respondent has
threatened to encash the bank guarantee
and to avoid the same, the petitioner
deposited the amount as was determined
against the petitioner in view of the order
dated 17.10.2018. The petitioner thereafter
preferred an appeal no.3 of 2019 which too
has been dismissed by means of the order
dated 31.10.2020.

11. The counsel for the petitioner
argues that the appeal has been wrongly
dismissed
mainly
agreeing
with
the
findings recorded by the assessing authority
which in turn had passed the order against
the petitioner solely placing reliance on the
judgment of the High Court of Madhya
Pradesh which was passed placing reliance
on the judgment in the case of VSL Alloys
(India) Pvt. Ltd. vs. State of U.P and
others reported in 2018 (67) NTN-DX 1.

12. The contention of the counsel for
the petitioner is that the order imposing tax
liability as well as the appellate order are
bad in law and contrary to the mandate of
the provisions of the CGST Act. He argues
that from the plain reading of the section
129 of the Act, it is clear that on the goods
being detained, the same are to be released
on the owner of the goods or any other
person coming forward and offering to pay
the amount as indicated in clause-a, clauseb and clause-c of Section 129(1) of the Act.
He argues that to determine the amount
which is liable to be paid under clause-a,
clause-b and clause-c of Section 129 (1),
the proper officer is empowered to specify
the penalty payable. He argues that
although the proper officer is empowered
to specify the penalty which should be paid
or offered to be paid under clause-a, clauseb or clause-c of Section 129(1) of the Act,
there is no power to determine the penalty
payable which can be done only in terms of
the mandate of Section 122 of the CGST
Act.

13. He further argues that admittedly
no proceedings for determination of the
penalty or for determination of the tax
outstanding have been initiated either under
section 73 or 74 of the CGST Act or under
section 122 of the CGST Act. He further
argues that in any event there was never
any dispute that the tax which is required to
be paid for transport of the goods was not
paid and thus, the demand as well as the
imposition of the penalty is neither justified
nor proper exercise of the power. He
further argues that no proceedings under
section 73, 74 or 75 of the Act have also
been initiated against the petitioner for
determination of the tax liability. Thus, in
short the submission of the counsel for the
petitioner is that in terms of the mandate of
section 129, the proper officer is neither
authorized nor justified in determining the
tax or imposing the penalty as has been
done by means of the impugned orders and
thus, the impugned orders are liable to be
set aside and the amount deposited by the
petitioner is liable to be refunded.

14. The Standing Counsel, on the
other hand, argues that admittedly Part-B of
the e-way bill was not uploaded by the
petitioner prior to the commencement of
the transport, which is a mandatory
requirement under Rule 138 of the Rules
framed under the Act and once it is
admitted by the petitioner that Part-B of the
e-way bill was not uploaded, no error can
be found with the orders passed by the
authority in exercising of the power under
section 129 of the Act. He further argues
10 All. Bharti Airtel Ltd. Vs. State of U.P. & Ors.
95
that a duty is cast upon the petitioner to
have uploaded Part-B of the e-way bill,
which has not been discharged. In light of
the said, he argues that the petition lacks
merit and is liable to be dismissed.

15. The counsel for the petitioner has
placed reliance on the judgment passed by
this Court in Writ Tax No.763 of 2018
decided on 09.5.2018 (Modern Traders vs.
State of U.P.) ; the judgment in Writ Tax
No.344 of 2018 decided on 07.02.2020
(Skipper Limited vs. Union of India); the
judgment in Writ Tax No.360 of 2020
decided on 17.12.2020 (Metenere Ltd. vs.
Union of India and others).

16. The Standing Counsel, on the
other hand, places reliance on the judgment
of the M.P. High Court in the case of Gati
Kintetsu Express Ltd. vs. Commercial Tax
of M.P. and others decided on 05.7.2018
reported at (2018) 56 GSTR 114. He also
places reliance on the judgment of the
Madras High Court in Writ Petition
No.1431 of 2020 (M/s Ideal Movers Private
Limited vs. The State Tax Officer (ENF),
Roving
Squad,
Vellore)
decided
on
24.01.2020. In the light of the said, it is
ultimately argued that the writ petition is
liable to be allowed.

17. Considering the submissions
made at the bar, it is essential to see the
mandatory provisions and scheme of the
CGST Act which cover the issue in
question particularly Sections 73, 74 and 75
read with section 122 and 129 and the Rule
138 of the CGST Rules.

18. CGST Act is provided into 21
Chapters. Chapter III of the said Act
provides for levy and collection of the tax.
Chapter IV concerns with the time and
value of the supply. Chapter X of the Act
provides for liability of the payment of tax.
Chapter XV of the Act in question, with
which we are concern, provides for manner
and demands or recovery.

19. Section 73 of the Act provides for
determination of tax which is not paid or
short paid or erroneously refunded or on
account of wrong availment inputs tax
credit for any reason other than fraud or
any wilful misstatement or suppression of
facts. Section 73 is quoted herein below :

73. Determination of tax not
paid or short paid or erroneously refunded
or input tax credit wrongly availed or
utilised for any reason other than fraud or
any willful-misstatement or suppression of
facts.-- (1) Where it appears to the proper
officer that any tax has not been paid or
short paid or erroneously refunded, or
where input tax credit has been wrongly
availed or utilised for any reason, other
than the reason of fraud or any wilfulmisstatement or suppression of facts to
evade tax, he shall serve notice on the
person chargeable with tax which has not
been so paid or which has been so short
paid or to whom the refund has erroneously
been made, or who has wrongly availed or
utilised input tax credit, requiring him to
show cause as to why he should not pay the
amount specified in the notice along with
interest payable thereon under section 50
and a penalty leviable under the provisions
of this Act or the rules made thereunder.

(2) The proper officer shall issue
the notice under sub-section (1) at least
three months prior to the time limit
specified in sub-section (10) for issuance of
order.

(3) Where a notice has been
issued for any period under sub-section (1),
the proper officer may serve a statement,
containing the details of tax not paid or
96 INDIAN LAW REPORTS ALLAHABAD SERIES
short paid or erroneously refunded or input
tax credit wrongly availed or utilised for
such periods other than those covered
under sub-section (1), on the person
chargeable with tax.

(4) The service of such statement
shall be deemed to be service of notice on
such person under sub-section (1), subject
to the condition that the grounds relied
upon for such tax periods other than those
covered under sub-section (1) are the same
as are mentioned in the earlier notice.

(5) The person chargeable with tax
may,
before
service
of
notice
under
subsection (1) or, as the case may be, the
statement under sub-section (3), pay the
amount of tax along with interest payable
thereon under section 50 on the basis of his
own ascertainment of such tax or the tax as
ascertained by the proper officer and inform
the proper officer in writing of such payment.

(6) The proper officer, on receipt of
such information, shall not serve any notice
under sub-section (1) or, as the case may be,
the statement under sub-section (3), in
respect of the tax so paid or any penalty
payable under the provisions of this Act or
the rules made thereunder.

(7) Where the proper officer is of
the opinion that the amount paid under subsection (5) falls short of the amount actually
payable, he shall proceed to issue the notice
as provided for in sub-section (1) in respect
of such amount which falls short of the
amount actually payable.

(8) Where any person chargeable
with tax under sub-section (1) or sub-section
(3) pays the said tax along with interest
payable under section 50 within thirty days of
issue of show cause notice, no penalty shall
be payable and all proceedings in respect of
the said notice shall be deemed to be
concluded.

(9) The proper officer shall, after
considering the representation, if any,
made by person chargeable with tax,
determine the amount of tax, interest and a
penalty equivalent to ten per cent of tax or
ten thousand rupees, whichever is higher,
due from such person and issue an order.

(10) The proper officer shall
issue the order under sub-section (9) within
three years from the due date for furnishing
of annual return for the financial year to
which the tax not paid or short paid or
input tax credit wrongly availed or utilised
relates to or within three years from the
date of erroneous refund.

(11) Notwithstanding anything
contained in sub-section (6) or sub-section
(8), penalty under sub-section (9) shall be
payable where any amount of self-assessed
tax or any amount collected as tax has not
been paid within a period of thirty days
from the due date of payment of such tax.

20. Section 74 of the said Act confers
power of determination of tax not paid or
short paid or erroneously refunded or in
case of wrongful availment of input tax
credit availed or utilized by the reasons of
fraud or any wilful misstatement or
suppression of facts. Section 74 is quoted
herein below :

74. Determination of tax not
paid or short paid or erroneously refunded
or input tax credit wrongly availed or
utilised by reason of fraud or any willfulmisstatement or suppression of facts.--

(1) Where it appears to the
proper officer that any tax has not been
paid or short paid or erroneously refunded
or where input tax credit has been wrongly
availed or utilised by reason of fraud, or
any wilful-misstatement or suppression of
facts to evade tax, he shall serve notice on
the person chargeable with tax which has
not been so paid or which has been so short
paid or to whom the refund has erroneously
10 All. Bharti Airtel Ltd. Vs. State of U.P. & Ors.
97
been made, or who has wrongly availed or
utilised input tax credit, requiring him to
show cause as to why he should not pay the
amount specified in the notice along with
interest payable thereon under section 50
and a penalty equivalent to the tax
specified in the notice.

(2) The proper officer shall issue
the notice under sub-section (1) at least six
months prior to the time limit specified in
sub-section (10) for issuance of order.

(3) Where a notice has been
issued for any period under sub-section (1),
the proper officer may serve a statement,
containing the details of tax not paid or
short paid or erroneously refunded or input
tax credit wrongly availed or utilised for
such periods other than those covered
under sub-section (1), on the person
chargeable with tax.

(4) The service of statement
under sub-section (3) shall be deemed to be
service of notice under sub-section (1) of
section 73, subject to the condition that the
grounds relied upon in the said statement,
except the ground of fraud, or any wilfulmisstatement or suppression of facts to
evade tax, for periods other than those
covered under subsection (1) are the same
as are mentioned in the earlier notice.

(5) The person chargeable with
tax may, before service of notice under subsection (1), pay the amount of tax along
with interest payable under section 50 and
a penalty equivalent to fifteen per cent. of
such tax on the basis of his own
ascertainment of such tax or the tax as
ascertained by the proper officer and
inform the proper officer in writing of such
payment.

(6) The proper officer, on receipt
of such information, shall not serve any
notice under sub-section (1), in respect of
the tax so paid or any penalty payable
under the provisions of this Act or the rules
made thereunder.

(7) Where the proper officer is of
the opinion that the amount paid under
sub-section (5) falls short of the amount
actually payable, he shall proceed to issue
the notice as provided for in sub-section (1)
in respect of such amount which falls short
of the amount actually payable.

(8) Where any person chargeable
with tax under sub-section (1) pays the said
tax along with interest payable under
section 50 and a penalty equivalent to
twenty-five per cent of such tax within
thirty days of issue of the notice, all
proceedings in respect of the said notice
shall be deemed to be concluded.

(9) The proper officer shall, after
considering the representation, if any,
made by the person chargeable with tax,
determine the amount of tax, interest and
penalty due from such person and issue an
order.

(10) The proper officer shall
issue the order under sub-section (9) within
a period of five years from the due date for
furnishing of annual return for the
financial year to which the tax not paid or
short paid or input tax credit wrongly
availed or utilised relates to or within five
years from the date of erroneous refund.

(11) Where any person served
with an order issued under sub-section (9)
pays the tax along with interest payable
thereon under section 50 and a penalty
equivalent to fifty per cent of such tax
within thirty days of communication of the
order, all proceedings in respect of the said
notice shall be deemed to be concluded.

Explanation 1.--For the purposes
of section 73 and this section,--

(i) the expression "all proceedings in
respect of the said notice" shall not include
proceedings under section 132;
98 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) where the notice under the
same proceedings is issued to the main
person liable to pay tax and some other
persons, and such proceedings against the
main person have been concluded under
section 73 or section 74, the proceedings
against all the persons liable to pay penalty
under sections 122 and 125 are deemed to
be concluded.

Explanation 2.--For the purposes
of this Act, the expression "suppression"
shall mean non-declaration of facts or
information which a taxable person is
required to declare in the return, statement,
report or any other document furnished
under this Act or the rules made
thereunder, or failure to furnish any
information on being asked for, in writing,
by the proper officer.

21. Thus, Sections 73 and 74 deal
with situations of determination of tax in
case of non-payment simplicitor or for the
reasons of fraud or wilful misstatement or
suppression of facts respectively.

22. Chapter XIX of the said Act
provides for offences and penalties. Section
122 of the Act provides for the quantum of
penalty leviable in the event of a taxable
person falling on the grounds mentioned
under section 122(1) clause (i) to clause
(xxi). The quantum of penalty is also
specified under section 122 (1) of the Act.
Section 122(1) is quoted herein below :

122.
Penalty
for
certain
offences.-- (1) Where a taxable person
who--

(i) supplies any goods or services
or both without issue of any invoice or
issues an incorrect or false invoice with
regard to any such supply;

(ii) issues any invoice or bill
without supply of goods or services or both
in violation of the provisions of this Act or
the rules made thereunder;

(iii) collects any amount as tax
but fails to pay the same to the Government
beyond a period of three months from the
date on which such payment becomes due;

(iv)
collects
any
tax
in
contravention of the provisions of this Act
but fails to pay the same to the Government
beyond a period of three months from the
date on which such payment becomes due;

(v) fails to deduct the tax in
accordance with the provisions of sub-section
(1) of section 51, or deducts an amount which
is less than the amount required to be
deducted under the said sub-section, or
where he fails to pay to the Government
under sub-section (2) thereof, the amount
deducted as tax;

(vi)
fails
to
collect
tax
in
accordance with the provisions of sub-section
(1) of section 52, or collects an amount which
is less than the amount required to be
collected under the said sub-section or where
he fails to pay to the Government the amount
collected as tax under sub-section (3) of
section 52;

(vii) takes or utilises input tax
credit without actual receipt of goods or
services or both either fully or partially, in
contravention of the provisions of this Act or
the rules made thereunder;

(viii) fraudulently obtains refund of
tax under this Act;

(ix) takes or distributes input tax
credit in contravention of section 20, or the
rules made thereunder;

(x) falsifies or substitutes financial
records or produces fake accounts or
documents or furnishes any false information
or return with an intention to evade payment
of tax due under this Act;

(xi) is liable to be registered
under this Act but fails to obtain
registration;
10 All. Bharti Airtel Ltd. Vs. State of U.P. & Ors.
99

(xii)
furnishes
any
false
information with regard to registration
particulars, either at the time of applying
for registration, or subsequently;

(xiii) obstructs or prevents any
officer in discharge of his duties under this
Act;

(xiv)
transports
any
taxable
goods without the cover of documents as
may be specified in this behalf;

(xv)
suppresses
his
turnover
leading to evasion of tax under this Act;

(xvi) fails to keep, maintain or
retain
books
of
account
and
other
documents
in
accordance
with
the
provisions of this Act or the rules made
thereunder;

(xvii) fails to furnish information
or documents called for by an officer in
accordance with the provisions of this Act
or the rules made thereunder or furnishes
false information or documents during any
proceedings under this Act;

(xviii) supplies, transports or
stores any goods which he has reasons to
believe are liable to confiscation under this
Act;

(xix)
issues
any
invoice
or
document by using the registration number
of another registered person;

(xx) tampers with, or destroys any
material evidence or document;

(xxi) disposes off or tampers with
any goods that have been detained, seized,
or attached under this Act,

Shall be liable to pay a penalty of
ten thousand rupees or an amount
equivalent to the tax evaded or the tax not
deducted under section 51 or short
deducted or deducted but not paid to the
Government or tax not collected under
section 52 or short collected or collected
but not paid to the Government or input tax
credit availed of or passed on or
distributed irregularly, or the refund
claimed fraudulently, whichever is higher.

23. In the same Chapter, there is a
procedure prescribed under section 129
which is invocable in respect of the goods
and conveyances in transit. Section 129 is
quoted herein below :

"129. Detention, seizure and
release of goods and conveyances in
transit.--(1)
Notwithstanding
anything
contained in this Act, where any person
transports any goods or stores any goods
while they are in transit in contravention of
the provisions of this Act or the rules made
thereunder, all such goods and conveyance
used as a means of transport for carrying
the said goods and documents relating to
such goods and conveyance shall be liable
to detention or seizure and after detention
or seizure, shall be released,--

(a) on payment of penalty equal
to two hundred per cent of the tax payable
on such goods and, in case of exempted
goods, on payment of an amount equal to
two per cent of the value of goods or
twenty-five thousand rupees, whichever is
less, where the owner of the goods comes
forward for payment of such penalty;

(b) on payment of penalty equal
to the fifty per cent of the value of the
goods or two hundred percent of the tax
payable on such goods, whichever is
higher, and in case of exempted goods, on
payment of an amount equal to five percent
of the value of goods or twenty five
thousand rupees, whichever is less, where
the owner of the goods does not come
forward for payment of such penalty;

(c) upon furnishing a security
equivalent to the amount payable under
clause (a) or clause (b) in such form and
manner as may be prescribed:
100 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that no such goods or
conveyance shall be detained or seized
without serving an order of detention or
seizure on the person transporting the
goods.

(2) ***

(3) The proper officer detaining
or seizing goods or conveyance shall issue
a notice within seven days of such detention
or seizure, specifying penalty payable, and
thereafter, pass an order within a period of
seven days from the date of service of such
notice, for payment of penalty under clause
(a) or clause (b) of sub-section (1).

(4)
No
penalty
shall
be
determined under sub-section (3) without
giving the person concerned an opportunity
of being heard.

(5) On payment of amount
referred in sub-section (1), all proceedings
in respect of the notice specified in subsection (3) shall be deemed to be
concluded.

(6)
Where
the
person
transporting any goods or the owner of
such goods fails to pay the amount of
penalty under sub-section (1) within
fifteen days from the date of receipt of the
copy of the order passed under subsection (3), the goods or conveyance so
detained or seized shall be liable to be
sold or disposed of otherwise, in such
manner and within such time as may be
prescribed,
to
recover
the
penalty
payable under sub-section (3):

Provided that the conveyance
shall be released on payment by the
transporter of penalty under sub-section (3)
or one lakh rupees, whichever is less:

Provided further that where the
detained or seized goods are perishable or
hazardous in nature or are likely to
depreciate in value with passage of time,
the said period of fifteen days may be
reduced by the proper officer."

24. Thus, in the Act in question, the
power of inspection, search and seizure can
be carried out under Chapter XIV or in case
of goods in transit under section 129.
Section 129, on the plain reading, can be
equated
with
an
alternative
dispute
redressal mechanism and provides an
opportunity to the owner of the goods or
any other person to pay amounts as
specified under section 129 (1)(a) or (b) or
(c) of the said Act.

25. On a plain reading of clause
129(1)(a) of the Act, which provides for
payment of penalty equal to 200% of the
tax payable on such goods or penalty equal
to 50% of the value of the goods, further
incorporates provisions for determination
of quantum of penalty under section
129(3). Thus, under the scheme of the Act,
the procedure for determination of tax and
penalty is contained in Chapter XV read
with section 122, 123, 125, 126, 127 and
128 of the Act and a parallel procedure is
prescribed under section 129 of the Act in
case of goods, which are in transit.

26. Section 129, can be invoked by
the department with regard to the goods in
transit and the goods can be released only
in the event the owner of the goods comes
forward for payment of penalty as specified
in clause (a) or (b) or (c) of Section 129 (1)
of the Act and on payment of the said
amount, the intent is to give quietus to the
litigation.

27. The question that arises here is
that what happened the owner of the goods
or the person does not volunteer to pay the
penalty as prescribed under clause (a), (b),
(c) of Section 129 (1) of the Act. In the said
case, the department is will equipped to
initiate proceedings by taking recourse to
Section 73, 74, 75 of the Act read with
10 All. Lalitesh Pati Tripathi Vs. Union of India & Ors.
101
section 122 for determination of tax and the
penalty leviable which, subject to the
appeal would govern the issues in between
the department and the assessee.

28. In the present case, the department
has proceeded to determine the tax liability
as well as penalty only under the provisions
of Section 129 of the Act, which is not
contemplated or intended. On a plain
reading of Section 129, there is no
provision
under
section
129
for
determination of tax due, which can be
done only by taking recourse to the
provisions of Section 73 or 74 of the CGST
Act, as the case may be.

29. As the proceedings have been
initiated and concluded only under section
129 and the owner of the goods has not
come forward for payment of such penalty
as has been determined, the entire action of
determining the tax and penalty under
section 129(1) as has been done by means
of the impugned order and upheld in the
appellate proceedings, impugned before
this Court, I have no hesitation in holding
that the order passed on 17.10.2018 and as
upheld by the order dated 31.10.2020 are
not
legally
substitutable
and
are
accordingly set aside. The amount paid by
the petitioner for release of the goods shall
be refunded to the petitioner with all
expedition preferably within a period of
two months from today.

30. With the said observations, the
writ petition is allowed.
----------
(2022) 10 ILRA 101
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.10.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 6971 of 2022

Lalitesh Pati Tripathi ...Petitioner
Versus
Union of India & Ors. ...Opposite Parties

Counsel for the Petitioner:
Shreya Chaudhary

Counsel for the Respondents:
A.S.G.I., C.S.C.

Civil Law - Passport Act, 1967 - Section
6(2)(f) - Refusal of passports, travel
documents, etc - passport authority
shall refuse to issue a passport on the
ground that proceedings in respect of an
offence alleged to have been committed
by the applicant are pending before a
criminal court in India - However, the
Central
Government
has
issued
a
notification dated 25th August 1993,
stating that individuals with pending
criminal proceedings, can request an
exemption from the passport issuance
conditions,
before
the
competent
criminal court - They can seek an order
from
the
concerned
criminal
court
allowing them to depart from India
(para 3, 4,6)

Disposed off . (E-5)

List of Cased cited:

Prashant Bhushan Vs U.O.I. & anr. Writ
Petition(c) 1524 of 2015;

(Delivered by Hon'ble Attau Rahman
Masoodi, J.
&
Hon'ble Om Prakash Shukla, J.)

1. Heard learned counsel for the
petitioner and Sri Varun Pandey, learned
counsel for the Union of India.