# M/s ASP Traders v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 427
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-18
- **Case number:** Writ-Tax No. 955 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-asp-traders-v-state-of-u-p-ors-48785
- **Pages:** 3

## Headnote

A. Tax Law - Central Goods and Services
Tax Act, 2017 read with IGST Act -
Sections 129(3) & 129(5) - Central Goods
and Services Tax Rules, 2017 - Rule
142(3) - Once the proceedings in respect
of notice u/s 129(3) of the Act stood
concluded in terms of Section 129(5) of
the Act read with Rule 142(3) of the
Rules, no mandamus can be issued to the
Assistant
Commissioner,
State
Goods
(respondent No. 3) to pass an order u/s
129(3) of the CGST/UPGST/IGST Act.
(Para 7)
Admittedly, a notice u/s 129(3) of the CGST Act
was issued by the respondent No. 3 to the
petitioner. Pursuant thereto the petitioner
deposited the amount on his own in form GST
DRC-03 and intimated it to the respondent No.

## Text

8 All. M/s ASP Traders Vs. State of U.P. & Ors.
427
3 to forthwith release a sum of Rs. 1 lakh to
the petitioners, keeping in view the
aforesaid circular of the Board leaving it
open to the petitioners to seek further
remedy that may be available to them in
respect of any enhanced amount of
compensation if permissible in accordance
with law.

17. The payment shall be made within
two months of the date of production of a
certified copy of the order.
----------
(2022) 8 ILRA 427
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-Tax No. 955 of 2022

M/s ASP Traders ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agarwal

Counsel for the Respondents:
C.S.C.

A. Tax Law - Central Goods and Services
Tax Act, 2017 read with IGST Act -
Sections 129(3) & 129(5) - Central Goods
and Services Tax Rules, 2017 - Rule
142(3) - Once the proceedings in respect
of notice u/s 129(3) of the Act stood
concluded in terms of Section 129(5) of
the Act read with Rule 142(3) of the
Rules, no mandamus can be issued to the
Assistant
Commissioner,
State
Goods
(respondent No. 3) to pass an order u/s
129(3) of the CGST/UPGST/IGST Act.
(Para 7)
Admittedly, a notice u/s 129(3) of the CGST Act
was issued by the respondent No. 3 to the
petitioner. Pursuant thereto the petitioner
deposited the amount on his own in form GST
DRC-03 and intimated it to the respondent No.
3. Therefore, the respondent No. 3 has issued
an
order
in
form
GST
DRC-05.
Thus,
proceedings in respect of the aforesaid notice
u/s 129(3) of the CGST Act stood concluded in
terms of mandate of sub-section (5) of S.129.
Hence, relief sought by the petitioner cannot be
granted since the matter is concluded as per
legislative mandate. (Para 6)

Writ petition dismissed. (E-4)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard Shri Rahul Agarwal, learned
counsel for the petitioner and Shri Nimai
Das, learned Additional Chief Standing
Counsel along with Shri B.P. Singh
Kachhawaha, learned Standing Counsel for
the State-respondents.

2. This writ petition has been filed
praying for the following relief:

"(a) issue a writ, order or
direction in the nature of Mandamus
directing the respondent no. 3 to make
available the copy of the order passed
under Section 129(3) in due compliance of
Section 129(4) of the U.P. Goods and
Services Tax Act pertaining to the seizure
of
goods
covered
by
notice
dated
21.01.2022 issued under Section 129(3) of
the U.P. Goods and Services Tax Act in
form GST MOV. 07 (Annexure-3 to the
writ petition);

(b) issue a writ, order or direction
in the nature of Mandamus directing the
respondent no. 3 to pass consequential
orders under Section 129(3) of the U.P.
428 INDIAN LAW REPORTS ALLAHABAD SERIES
Goods and Services Tax Act after affording
an opportunity of hearing to the petitioner;"

3. Briefly stated facts of the present
case are that the petitioner is a consignor of
certain goods. While the goods were being
transported through vehicle no. UP 78 GN
7563 under invoice no. 15 dated 14.1.2022,
valued at Rs. 51,72,930/- and e-Way bill
no. 141424463403, it was intercepted by
the respondent no. 3 on 17.1.2022 and the
goods were detained. The statement of
driver of the vehicle was recorded in form
GST MOV-01 followed by physical
inspection of the goods and issuance of
form GST MOV-04 on 20.1.2022. Certain
discrepancies were found by the respondent
no. 3 which gave rise to issuance of
detention order dated 20.1.2022 in form
GST MOV-06, which was followed by a
notice dated 21.1.2022 under Section
129(3) of the CGST, 2017 read with IGST
Act, fixing date for 28.1.2022. In the
meantime,
although
the
petitioner
submitted
a
reply,
but
immediately
thereafter, on his own, deposited the sum
demanded in the notice under Section
129(3) amounting to Rs. 7,20,440/- in form
GST DRC-03. Thereafter, the respondent
no. 3 issued an order dated 27.1.2022 in
GST MOV-05 and released the goods and
vehicle.

4. Sub-section (3) and (5) of Section
129 of the CGST Act and sub-rule (3) of
Rule 142 of the CGST Rules, 2017 are
relevant for the purposes of the present case
which are reproduced below:

"129(3)
The
proper
officer
detaining or seizing goods and conveyance
shall issue a notice within seven days of
such detention or seizure, specifying the
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).

(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."

5. Sub-rule (3) of Rule 142 of the
CGST Rules, 2017 reads as under:

"142(3)
Where
the
person
chargeable with tax makes payment of tax
and interest under sub-section (8) of
Section 73 or, as the case may be, tax,
interest and penalty under sub-section (8)
of Section 74 within thirty days of the
service of a notice under sub-rule (1), or
where the person concerned makes
payment of the amount referred to in
sub-section (1) of Section 129 within
[seven days of the notice issued under
sub-section (3) of Section 129 but before
the issuance of order under the said subsection (3)], he shall intimate the proper
officer of such payment in FORM GST
DRC-03 and the proper officer shall issue
an
order
in FORM
GST DRC-05
concluding the proceedings in respect of
the said notice."

6. Admittedly a notice under Section
129(3) of the CGST Act was issued by the
respondent no. 3 to the petitioner. Pursuant
thereto the petitioner deposited the amount
on his own in form GST DRC-03 and
intimated it to the respondent no. 3.
Therefore, the respondent no. 3 has issued
an order in form GST DRC-05. Thus,
proceedings in respect of the aforesaid
notice under Section 129(3) of the CGST
Act stood concluded in terms of mandate of
sub-section (5) of Section 129. Hence,
relief sought by the petitioner cannot be
granted since the matter is concluded as per
legislative mandate.
8 All. Durga Prasad & Ors. Vs. Smt. Manju Singh & Anr.
429

7. Once the proceedings in respect of
notice under Section 129(3) of the Act stood
concluded in terms of Section 129(5) of the
Act read with Rule 142(3) of the Rules, no
mandamus can be issued to the respondent
no. 3 to pass an order under Section 129(3) of
the CGST/UPGST/IGST Act.

8. The contention of the petitioner that a
copy of the order under Section 129(3) of the
CGST/UPGST/IGST, Act be provided to
him, is wholly misconceived inasmuch as the
proceedings stood concluded in terms of subsection (5) of Section 129 read with Rule 142
(3) of the Rules and, therefore, no mandamus
contrary to law can be issued in exercise of
powers conferred under Article 226 of the
Constitution of India.

9. For all the reasons aforestated, the
writ petition is dismissed.
----------
(2022) 8 ILRA 429
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters under Art. 227 No. 3093 of 2022

Durga Prasad & Ors. ...Petitioners
Versus
Smt. Manju Singh & Anr. ...Respondents

Counsel for the Petitioners:
Sri Rishikesh Tripathi

Counsel for the Respondents:
Ms. Rama Goel Bansal, Ms. Shalini Goel

A. Civil Law - Practice and Procedure -
Code of Civil Procedure, 1908 - Order
XXVI Rule 10(2) - There is no requirement
in law, nor the legal provision permits any
of the parties to ask for summoning of the
Court
Commissioner
along
with
his
instruments to make actual demonstration
about the procedure followed by him in
conducting the survey. (Para 14)

Perusal of the Order 26 Rule 10 (2) of C.P.C.,
clearly demonstrate that the said provision
provides
for
cross-examination
of
Court
Commissioner on any of the point including the
point as to the manner and procedure which
had been followed or adopted by the Court
Commissioner in conducting the survey. The
aforesaid provision does not permit any of
the parties to submit application for
summoning the Court Commissioner along
with
instruments
to
make
actual
demonstration in the Court as regards the
procedure adopted by him in conducting
the survey. If any of the party is not satisfied
with the survey report submitted by the Survey
Commissioner, it may put a question in crossexamination
regarding
the
manner
and
procedure adopted by him in conducting the
survey. The issue can be very much determined
from the reply of the Court Commissioner to the
question put by any of the parties in crossexamination regarding the procedure adopted
by the Court Commissioner in conducting the
survey. (Para 13)

The
cross-examination
of
the
Court
Commissioner is still continuing and has not yet
closed. In such view of the fact, the petitioners
have still an opportunity to put relevant
question to the Court Commissioner to prove
that the report of the Survey Commissioner is
wrong or incorrect. (Para 15)

B. This Court finds that the finding of the
revisional court that the application filed
by the petitioners has been filed only to
linger on the suit is based upon proper
appreciation of facts on record. The
petitioners have instituted the suit in the year
2007
and
first
application
for
Survey
Commissioner was filed in the year 2011 and
uptill 2017 two more applications, i.e., total
three applications for appointment of Survey
Commissioner have been filed by the petitioners
and more than 15 years have passed, yet the
suit has not proceeded because of the lingering
device adopted by the petitioners, so that the
Court may not proceed to decide the suit. (Para
16)