Page 74 - GSTL_23rd April 2020_Vol 35_Part 4

400 GST LAW TIMES [ Vol. 35
pellene Derivative Petrochemical Projects of M/s. Bharat Petroleum Corporation
Limited, Kochi Refinery, Cochin. The aforementioned facts are evidenced from
Ext.P1.
2. M/s. Offshore Infrastructure Limited is a registered dealer under
GST in Kerala and have been executing the works contract of BPCL and paying
GST for entire works executing in Kerala, whereas the petitioner is only a sub-
contractor. The goods in question was transported on the strength of three deliv-
ery challans dated 22-2-2020, produced as Exts.P2, P2(A) and P2(B). They also
come with e-way bills and declaration produced as Exts.P2D and P2E. Smt.
Latha. K, Learned Counsel appearing on behalf of the petitioner submits that, for
the reasons best known to the officers of the GST, goods were detained vide
Ext.P3, and issued a memo under Section 129(3) of the Central Goods and Ser-
vices Tax Act, 2017, on the premise that the consignment was not accompanied
by invoice. The said requirement is not necessary in view of the plain and simple
reading of the provisions of Rule 138A of the Central Goods and Services Tax
Rules, 2017. The petitioner is willing to submit, for the release of the detained
goods, half of the bank guarantee and half indemnity bond.
3. Dr. Tushara James, Learned Counsel appearing for the State opposes
the aforementioned contention on the premise that it is not a case of pure and
simple application of Rule 138A as the pith and substance of the averments as
well as the works contract leaves no manner of doubt that for the purpose of
work contract, delivery challan is not sufficient for compliance of the provisions
of the Act, 2017. In this regard, reliance has been replaced to Rule 55 and Sched-
ule II of the Act, 2017. She also referred to the provisions of definition of works
contract defined under Section 2(119) of Act, 2017. For the purpose of interim
relief, attention of this Court have been drawn to the provisions of Section
129(1)(b) and 129(1)(c) as well as Rule 140 of [Rules], 2017. For the purpose of
provisional release of the seized goods, security in the form of bank guarantee
equivalent to the amount of applicable tax, interest and penalty is liable to be
paid, and urges this Court for dismissal of the writ petition with a further request
that all these factors would be considered by the adjudicating authority.
4. Heard Learned Counsel for the parties and appraised the particulars.
Petitioner is not willing to pay the security in the form of bank guarantee equiva-
lent to the amount of applicable tax, interest and penalty, without expressing any
opinion on the merits as to strict applicability of Rule 138A or Rule 55 read with
Section 129 or Rule 140. In my view, it is in the domain of the adjudicating au-
thority. Since the goods are already lying seized with effect from 27-2-2020, the
goods can be released on furnishing of Bank guarantee for the full amount as per
provision of Section 129 of CGST Act, 2017.
5. I dispose of the writ petition with a direction to the adjudicating au-
thority to adjudicate the matter with regard to the goods being in compliance
with the provisions of the Act or otherwise as expeditiously as possible, prefera-
bly within a period of 45 days from the receipt of the certified copy of this judg-
ment, in accordance with law, after affording opportunity of hearing to the par-
ties.
6. The writ petition is disposed of as above.

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