# M/S Libra Int. Ltd v. Asst. Comm. & Anr

- **Citation:** (2021) 1 ILRA 702
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-02
- **Case number:** Writ Tax No. 665 of 2020
- **Bench:** Surya Prakash Kesarwani, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-libra-int-ltd-v-asst-comm-anr-46120
- **Pages:** 5

## Headnote

(A) Civil Law - U.P. G.S.T. Act, 2017:
Section 129 - By virtue of the deeming
provision under sub-section (5) of Section 129
all the proceedings in respect of the notice
specified under sub-section (3) shall be deemed
to be concluded on deposition of entire amount
of tax and penalty determined in the penalty
order. (Para 15)

Writ Petition Rejected. (E-8)

## Text

702 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The No Objection Certificate
having thus been issued on the Registering
Authority at Gorakhpur, the same would be
valid for use only before the Registering
Authority mentioned in the endorsement
made under Part-III of Form-28, i.e. the
Registering Authority, Gorakhpur and as
per the relevant Rules, the same cannot be
held to be valid for use before any other
Registering Authority.

11. Under the aforesaid circumstances,
the petitioner may either apply for
correction of the No Objection Certificate
issued by the Registering Authority or
make an application for issuance of a fresh
registration
certificate
containing
an
endorsement showing that it is valid for use
before the Registering Authority at Deoria,
as per the statutory provisions referred to
above.

12. With the aforesaid observations,
the writ petition is dismissed.
----------
(2021)01ILR A702
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ Tax No. 665 of 2020

M/S Libra Int. Ltd. ...Petitioner
Versus
Asst. Comm. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Suyash Agarwal, Sri Ankur Agarwal

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

(A) Civil Law - U.P. G.S.T. Act, 2017:
Section 129 - By virtue of the deeming
provision under sub-section (5) of Section 129
all the proceedings in respect of the notice
specified under sub-section (3) shall be deemed
to be concluded on deposition of entire amount
of tax and penalty determined in the penalty
order. (Para 15)

Writ Petition Rejected. (E-8)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Suyash Agarwal, learned
counsel for the petitioner and Sri C.B.
Tripathi, learned Special Counsel for
respondent no.1.

2. This writ petition has been filed
praying for following reliefs :-

"I. Issue a writ, order or direction in
the nature of Certiorari quashing the order
no.731
dated
15.2.2018
passed
by
Respondent no.1 u/s 129(3) of the UPGST
Act (Annexure No. 6)

II Issue a writ, order or direction in
nature of certiorari quashing GST DRC-07
dated 18.9.2020 (Annexure-9)

III. Issue any other writ, order or
direction in favour of the petitioner which
this Hon'ble Court deems fit in the facts
and circumstances of the case.

IV. Award cost of the petition to the
petitioner."

3. Pleadings of the writ petition
indicate that the goods and vehicle of the
petitioner were intercepted on 11.2.2018 on
the ground that the goods in question were
being transported without E-Way Bill and a
notice under Section 129(3) of the Uttar
Pradesh Goods and Services Tax Act, 2017
1 All. M/S Libra Int. Ltd. Vs. Asst. Comm. & Anr.
703
(hereinafter referred to as "the Act, 2017")
was issued specifying the tax and penalty
payable. Thereafter, an order for payment
of tax of Rs.1,01,844/- and equivalent
amount of penalty, total Rs. 2,03,688/-, was
passed under Section 129(3) of the Act,
2017.

4. The petitioner claims to have
deposited the amount of tax and penalty
vide demand draft dated 14.2.2018 and
despite the same, an order in FORM GST
DRC-07 dated 18.9.2020 has been received
by the petitioner showing the details of
demand in respect of tax and penalty
determined under Section 129 of the Act,
2017. Learned counsel for the petitioner
submits that left with no other remedy, the
present writ petition has been filed.

5. Learned counsel appearing for
respondent no.1 submits that the order
dated 15.2.2018 passed under Section
129(3) of the Act, 2017, has attained
finality and the same cannot be assailed at
this stage. He further submits that the writ
petition is barred by laches and is not liable
to be entertained for this reason. Further,
submission is made that since the petitioner
claims to have deposited the entire amount
of interest and penalty by means of a
demand draft dated 14.2.2020, in view of
the provisions contained under sub-section
(5) of Section 138 of the Act, 2017, all
proceedings in respect of the notice under
Section 129(3) shall be deemed to be
concluded.

6. Learned counsel for the State
respondent submits that in the event the
petitioner
has
actually
deposited
the
amount towards tax and penalty determined
in terms of the order dated 15.2.2018 under
Section 129(3) of the Act, 2017, he may
apply for a rectification of the order
uploaded
in
FORM
GST
DRC-07
alongwith proof of having made the
payment pursuant to the demand pertaining
to tax and penalty.

7. Heard learned counsel for the
parties and perused the record.

8. In order to appreciate the
contention of the parties, the relevant
statutory provision under Section 129 of
the
Act,
2017,
which
provides
for
detention, seizure and release of goods and
conveyances in transit may be referred to.
Section 129 reads as follows :-

"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 the applicable
tax and penalty equal to one 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 tax and penalty;

(b) on payment of the applicable
tax and penalty equal to the fifty per cent.
of the value of the goods reduced by the tax
amount paid thereon and, in case of
exempted goods, on payment of an amount
equal to five per cent. of the value of goods
or twenty five thousand rupees, whichever
704 INDIAN LAW REPORTS ALLAHABAD SERIES
is less, where the owner of the goods does
not come forward for payment of such tax
and 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:

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) The provisions of sub-section (6)
of section 67 shall, mutatis mutandis, apply
for detention and seizure of goods and
conveyances.

(3) The proper officer detaining or
seizing goods or conveyances shall issue a
notice specifying the tax and penalty
payable and thereafter, pass an order for
payment of tax and penalty under clause (a)
or clause (b) or clause (c).

(4) No tax, interest or 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 sub-section (3)
shall be deemed to be concluded.

(6) Where the person transporting any
goods or the owner of the goods fails to pay
the amount of tax and penalty as provided
in sub-section (1) within fourteen days of
such
detention
or
seizure,
further
proceedings shall be initiated in accordance
with the provisions of section 130:

Provided 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
fourteen days may be reduced by the proper
officer."

9. In terms of sub-section (1) of
Section 129, where any person transports
any goods or stores any goods while they
are in transit in contravention of the
provisions of the 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. Sub-section (3)
provides for issuance of a notice specifying
the tax and penalty payable after detention
or seizure of goods or conveyances, and
passing of an order for payment of tax and
penalty.

10. Sub-section (5) of Section 129 of
the
Act,
2017,
contains
a deeming
provision, and in terms thereof, upon
payment of the amount referred in subsection (1), all proceedings in respect of the
notice specified in sub-section (3) shall be
deemed to be concluded.

11. The summary of the order
uploaded electronically in FORM GST
DRC-07 bearing date 18.9.2020 specifying
therein the amount of tax, interest and
penalty is referable to Rule 142(5) of the
Uttar Pradesh Goods and Service Tax
Rules, 2017. For ease of reference, subrules (5), (6) and (7) of Rule 142 are
extracted below :-

"(5) A summary of the order issued
under section 52 or section 62 or section 63
or section 64 or section 73 or section 74 or
section 75 or section 76 or section 122 or
section 123 or section 124 or section 125 or
section 127 or section 129 or section 130
shall be uploaded electronically in FORM
GST DRC-07, specifying therein the
amount of tax, interest and penalty payable
by the person chargeable with tax.
1 All. M/S Libra Int. Ltd. Vs. Asst. Comm. & Anr.
705

(6) The order referred to in sub-rule
(5) shall be treated as the notice for
recovery.

(7) Where a rectification of the order
has been passed in accordance with the
provisions of section 161 or where an order
uploaded
on
the
system
has
been
withdrawn, a summary of the rectification
order or of the withdrawal order shall be
uploaded electronically by the proper
officer in FORM GST DRC-08."

12. Rule 142 of the aforementioned
Rules, 2017, is in respect of notice and
order for demand of amounts payable under
the Act. Sub-rule (5) of Rule 142 provides
that a summary of the order issued under
certain provisions, including an order
issued under Section 129, shall be uploaded
electronically in FORM GST DRC-07
specifying therein the amount of tax,
interest and penalty payable by the person
chargeable with tax. In terms of sub-rule
(6) the order referred to in sub-rule (5) shall
be treated as the notice for recovery.
Further, sub-rule (7) provides that where a
rectification of the order has been passed in
accordance with the provisions of Section
161 or where an order uploaded on the
system has been withdrawn, a summary of
the rectification order or of the withdrawal
order shall be uploaded electronically by
the proper officer in FORM GST DRC-08.

13. A combined reading of sub-rules
(5), (6) and (7) of Rule 142 of the Rules,
2017, indicate that a mechanism is
provided for uploading summary of certain
specified orders, including the order issued
under Section 129 in FORM GST DRC07, specifying therein the amount of tax,
interest and penalty payable by the person
chargeable with tax. In the event the order
aforementioned has been rectified or
withdrawn, a summary of the rectification
order was of the withdrawal order is
uploaded electronically by the proper
officer in FORM GST DRC-08.

14. We may take note of the fact that
implementation of the GST regime has
brought about a major reform in the field of
indirect taxation and all key aspects starting
from registration till filing of the return,
raising of e-way bill, filing of the refund
claim, passing of an order creating demand
of tax and penalty, rectification of the
order, etc. are dependant on a technology
driven process with regard to which the
necessary procedure is provided under the
Rules.

15. The challenge sought to be raised
to the order dated 15.2.2018 passed under
Section 129 (3) of the Act, 2017, having
been made at a belated stage, we are of the
view that the relief claimed in this regard in
terms of relief clause (I), would be barred
by laches; moreso, in the light of the fact
that the petitioner claims to have deposited
the entire amount of tax and penalty
determined under the said order, and by
virtue of the deeming provision under subsection (5) all proceedings in respect of the
notice specified under sub-section (3) shall
be deemed to be concluded.

16. As regards the prayer for
quashing the summary of the order
uploaded electronically in FORM GST
DRC-07 dated 18.9.2020, as under relief
clause (II), we may observe that in the
event the petitioner has actually made
payment of the entire amount due
towards tax and penalty referred to in the
notice issued under sub-section (1) of
Section 129, he may submit proof thereof
before the authority concerned and apply
for rectification/withdrawal of the said
order.
706 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Subject to aforesaid observations,
the writ petition is dismissed.
----------
(2021)01ILR A706
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ Tax No. 666 of 2020

M/S G.K. Trading Co., Ghaziabad
 ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Praveen Kumar

Counsel for the Respondents:
A.S.G.I., C.S.C., Ramesh Chandra Shukla,
Sri C.B. Tripathi

(A) Civil Law - U.P. GST Act, 2017/ CGST
Act, 2017: Section 2(91), 4(2), 6(2)(b),
67 to 72

The word "inquiry" in Section 70 has a special
connotation
and
a
specific
purpose
to
summon any person whose attendance may
be considered necessary by the proper officer
either to give evidence or to produce a
document or any other thing. The word
"inquiry" in Section 70 is not synonymous
with the word "proceedings", in Section
6(2)(b) of the U.P.G.S.T Act/C.G.S.T Act.

The words "any proceedings" on the "same
subject matter" used in Section 6(2)(b) of the
Act, which is subject to conditions specified in
the notification issued under sub-section (1);
means any proceeding on the same cause of
action and for the same dispute involving
some adjudication proceedings which may
include assessment proceedings, proceedings
for penalties etc., proceedings for demand
and recovery under Section 73 and 74 etc.

Section 6(2)(b) of the C.G.S.T. Act prohibits a
proper officer under the Act to initiate any
proceeding on a subject-matter where on the
same subject-matter proceeding by a proper
officer under the U.P.G.S.T. Act has been
initiated.

It has been observed that there is no
proceeding by a proper officer against the
petitioner
on
the
same
subject-matter
referable to Section 6(2)(b) of the U.P.G.S.T.
Act. It is merely an inquiry by a proper officer
under Section 70 of the C.G.S.T. Act. (Para
19)

Writ Petition Rejected. (E-8)

List of Cases cited :-

1. Liberty Oil Mills & ors. Vs U.O.I. & ors.
(1984) 3 SC 465

2. Ballabh Das Vs Dr. Madan Lal & ors. (1970)
1 SCC 761

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Praveen Kumar, learned
counsel for the petitioner and Sri C. B.
Tripathi, learned special counsel for the
Union of India.

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

(i) To issue a writ, order or
direction in the nature of mandamus
commanding the respondent nos. 3 and 4
not to proceed with any inquiry against the
petitioner and to talk any coercive steps
against the petitioner, in pursuance of the
impugned summoned.

(ii) To issue any other suitable
writ, order or direction which the Hon'ble