Page 61 - GSTL_30th April 2020_Vol 35_Part 5

2020 ] HINDUSTAN COCA COLA PVT. LTD. v. ASSTT. STATE TAX OFFICER 547
ambiguity with respect to classification of products has to be resolved in favour
of assessee. In support of the above contention petitioner relied upon 2018 judg-
ment of Hon’ble Allahabad High Court in Commissioner of Commercial Tax v.
Racket Backizer India Ltd. [2018 (19) G.S.T.L. 596 (All.)], which followed the deci-
sion of the Hon’ble Supreme Court in Voltas Ltd. v. State of Gujarat [(2015) 7 SCC
527], which laid down the same principle as reiterated by the Hon’ble Allahabad
High Court. Hence, the levy of penalty arising from ambiguity in classification is
arbitrary and illegal, thereupon making the demand for penalty illegal.
5. I have heard the Learned Counsel for the parties and apprised the
paper book. The facts as narrated above with regard to the transit of goods from
Karnataka to Kerala, reflecting the payment of Goods Service Tax as 12% in cate-
gorizing drink under the Code 2202 99 20 are not in dispute. The only point to be
pondered is whether the Officers of Kerala would have a jurisdiction to detain
and seize the goods or at the best could have intimated the jurisdictional Officer
in Karnataka to initiate proper proceedings against the petitioner in view of the
report. To answer the aforementioned question, it would be in the fitness of
things to extract Section 129 of the GST Act.
“129. Detention, seizure and release of goods and conveyances in trans-
it. - (1) Notwithstanding anything contained in this Act, where any person
transports any goods or stores any goods while they are in transit in con-
travention 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 re-
leased, -
(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 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 de-
tained of seized without serving an order of detention or sei-
zure 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 is-
sue 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 con-
cluded.
GST LAW TIMES  30th April 2020  61