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September 13, 2022

GST: The HC cannot act as an authority for fact-finding and verification

by CA Shivam Jaiswal in GST

GST: The HC cannot act as an authority for fact-finding and verification

Facts and issues of the case

By this writ petition, petitioner has challenged the impugned order passed by the respondent GST authority, under Section 129(1) of the CGST Act and WBGST Act, 2017 dated 10th August, 2022.Mr. Ghosh learned advocate appearing for the respondent State GST authority was directed by the order dated 26th August, 2022 to take appropriate instruction in the  matter and in compliance of the same he has filed written instruction dated 29th August, 2022 along with supporting documents issued by the Assistant Commissioner of Revenue, Bureau of Investigation (South Bengal), Kharagpur and on perusal of the same taken note of it particularly in paragraphs 3 and 4 of the said instruction which are as quoted as hereunder : –

The Physical verification of goods was made on 10.08.2022 on the strength of GST FORM MOV-03 issued by Senior Joint Commissioner of Revenue, Kharagpur Zone for extension of date for physical checking beyond three days. The report of the physical verification was drawn in GST MOV 04 on 10.08.2022 and a physical copy  of  GST  MOV-04  is duly served to the driver, Mani  N.  on  10.08.2022. Upon physical verification approximately 312 cubic feet of team sawn timber has been found in excess of what has been declared in e-way bill and invoice.

Physical checking also reveals that the measurement details (length, breath and height) of the teak sawn timber are not in coherence with measurement slip produce by the driver. So, completion of physical verification on 10.08.2022 unfolds  that  the  vehicle was carrying a separate consignment of “Teak Sawn Timber” which is different in size, shape and quantity from that mentioned in the submitted tax invoice, e- way bill and Certificate of Forest Department.

 Also paper verification at the end of consignor on 05.08.2022 by BI/South Bengal Head  Quarter reveled that consignor was non-existent at his registered place of business. The consignor is attempted to avoid tax liability. Hence goods loaded in the vehicle  is seized and the vehicle is detained u/s 129 of WBGST Act, 2017 by issuing GST MOV 06 on 10.08.2022. A physical copy of the GST MOV 06 was duly issued and served on 10.08.2022 after explaining the content of the notice to the driver/person in charge, MANI N.  The driver received it and put his signature on the office copy.

A show cause notice in GST MOV 07 was issued on 11.08.2022 to the driver, MANI N after computing the applicable penalty for contravention of Section 68 read with Section 129 and Rule 138 of GST Act and rules. A physical copy  of  the  GST  MOV  07 was duly handed over on 11.08.2022 after explaining the content of the notice to the driver/person  in charge, MANI. N. The driver received it and put his signature on the office copy.

Observation by the court

On the basis of aforesaid  finding  as  appears from the instruction of the respondent GST authority the issue involved is highly disputed question of fact with regard to registration of the “Teak Sawn Timber” not tallying with the declaration made in the E-way bill and invoices and further there is no existence of consignor at his registered place of business, this Court in exercise of constitutional writ jurisdiction under Article 226 of the Constitution of India cannot act as a fact finding and verification authority over transported the goods in question.

If the petitioner  is  not  satisfied  with  the reasons given for detention of the goods in  question and the order passed under Section 129(1) of the Act, the same is appellable before the  appellate  forum under Section 107 of the Act. Mr. Ghosh shall hand over a copy of the instruction to learned advocate appearing for the petitioner who will take appropriate statutory remedy either before  the  appellate  forum  or  before  the Officer concerned in accordance with law.


With this observation and direction this writ petition being WPA  18885  of  2022  stands  disposed of.


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