Page 62 - GSTL_30th April 2020_Vol 35_Part 5

548 GST LAW TIMES [ Vol. 35
(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 haz-
ardous 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.”
6. On a perusal of the aforementioned Act, it is evident that Section 129
opens with a non obstante clause empowering the Officers to detain and seize the
goods, if it found to be in contravention of any of the provisions of the Act and
release of the vehicles, as per the conditions, enumerated, therein. A similar
question also arose for consideration before the Division Bench of the Gujarat
High Court in Synergy Fertichem Pvt. Ltd.’s case (supra) wherein paragraph 158
and 159 and 160 held as under :
“158. In many matters of the present type, we have noticed that the
goods are detained on the ground that the tax paid on the product was less.
In such matters, although the documents were found to be in order and the
description of the product also accorded with the relevant declaration, still
the consignment were detained on the ground that the tax paid was less.
159. In our opinion, the detention and seizure of goods on such
ground cannot be justified. In such an eventuality, the correct procedure
which the inspecting authority is expected to follow is to alert the Assessing
Authority to initiate the proceedings “for assessment of any alleged sale at
which the dealer will have his opportunities to put forward his pleas on
law and on fact. What we want to convey is that the process of detention of
the goods cannot be resorted to when the dispute is bona fide especially con-
cerning the exigibility of tax and, more particularly, the rate of that tax. In
the aforesaid context, we may refer to and rely upon a decision of the Kera-
la High Court in the case of N.V.K. Mohammed Sulthan Rawtger & Sons Din-
digul, Tamil Nadu, Represented by Managing Partner, Raja Mohammed &
Ors., v. Union of India & Ors., reported in (2019) 61 GSTR 307-2018-VIL-502-
KER, wherein a Learned Single Judge of the Kerala High Court observed as
under;
“24. Detention under the KSGST Act has an elaborate reme-
dial mechanism. Now, we focus on the release of the product, and it
lies in narrow confines, Suffice it for me to examine this singular issue:
Can the State Tax Officer invoke Section 129 of the Act and detain
goods on the ground the tax paid on the product is less? Here, the
documents are in order and the product description accords with what
the first petitioner has already declared, say, in his returns before the
assessing authority. Then, can the ASTO still hold up the consignment
because the declaration already made does not suit his notion of what
the product is?
25. True, a literal reading of Section 129 of the Act presents a
different picture and, perhaps, lends support to the State’s view. But
purposive interpretation and the practical commercial considerations
trump that view.
26. Chapter XVI of the Combined Acts deals with inspection,
search, and seizure. Section 129 under Chapter XIX provides the
mechanism for detention, seizure, and release of goods and convey-
ances in transit. It begins with a non obstante clause and goes on to lay
down the procedure. If any person transports or stores any goods
“contravening this Act” or its rules, all those goods and means of
transport and documents relating to those goods and conveyance will
be detained or seized. They will, however, be released to the owner of
GST LAW TIMES  30th April 2020  62