GST : Detention, Seizure And Release Of Goods & Conveyances In Transit Under Section 129 Of CGST Act

Section 129 of the Central Goods and Services Tax Act, 2017 ("CGST Act") gives power of detention and seizure to the officers if a person transports any goods or stores any goods while they are in transit in contravention of the provisions of the Act or the rules. ^[1]

The various stages of interception, detention and release of goods and conveyances under Section 129 are as follows^[2]:

1. 1.Interception

Upon interception of a conveyance, if the transporter fails to provide the documents asked for in verification, the proper officer shall:

1. a.record statement of the person in charge of conveyance where the person in charge of the conveyance fails to produce any prescribed document or where the proper officer intends to undertake an inspection.^[3]
2. b.issue an order for physical verification and inspection of goods, conveyance or documents requiring the person in charge of the conveyance to station the conveyance at the place mentioned in such order and allow the inspection of the goods.^[4] The inspection proceedings are to be completed within 3 working days from the date of issue of the order.
3. c.obtain written permission^[5], if more than three days is required for inspection.
4. d.prepare a physical verification report^[6] upon completion of proceedings and serve copy to person in charge of conveyance.

2. 2.Release: If no discrepancies are found during the inspection and verification process, an order^[7] shall be passed releasing the vehicle and goods.

3. 3.Order of Detention and Issuance of Notice: However, if discrepancy is found, the officer may pass an order of detention^[8] and issue a notice^[9] as per Section 129 (3) and (4) specifying the tax and penalty payable after giving the person concerned an opportunity of being heard.

4. 4.Provisional Release: As per Section 129(2), the provisions of section 67(6) shall, mutatis mutandis, apply for detention and seizure of goods and conveyances. Section 67(6) states that the goods seized under shall be released, on a provisional basis, upon execution of a bond^[10] and furnishing of a security, in such manner and of such quantum, respectively, as may be prescribed or on payment of applicable tax, interest and penalty payable, as the case may be.

Regarding release of goods, Section 129(1) states, the detained goods and conveyance 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 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.

5. 5.Order for Payment: After hearing the party concerned, the officer is to pass a speaking order^[11] quantifying the tax and penalty payable under clause (a) or clause (b) or clause (c) of Section 129. On payment of amount determined, all proceedings in respect of the notice is deemed to be concluded.

6. 6.Initiation of Section 130^[12] Proceedings: However, if there is failure to pay the amount of tax and penalty within fourteen days^[13] of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of section 130 such as issuance of notice^[14] and order^[15] for confiscation of goods and conveyance.^[16] 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 seven days may be reduced by the proper officer.

1. A.Constitutionality of Section 129

Unlike the erstwhile state sales tax laws which permitted detention in cases of attempted evasion of tax or omission of the subject transaction from the regular books of accounts, section 129 empowers the officers to detain goods and conveyance for acting in 'contravention of the provisions' of the Act or rules which means even procedural lapses can lead to detention. Further, under section 129 of the GST Acts the authorities need not establish intention to evade payment of tax which is a prerequisite for Section 130 of the GST Act.

Suppose, A who is the owner of the goods was transporting certain goods worth Rs. 1,00,000, was intercepted under Section 129 for not having e-way bill. There can be various scenarios by which A can obtain release of goods under Section 129.

Scenario I - Section 129(1)(a)	A will have to make payment of tax and 100% penalty under Section 129 of the GST Act for release of the goods if he comes forward to make the payment as per Section 129(a). A will have to pay 18,000 (Tax calculated at 18%) + 18000 (100% penalty) = Rs. 36,000 for release of goods.
Scenario II - Section 129(1)(b)	If A does not come forward to make the payment, he will have to payment under Section 129(1)(b) which states that the goods shall be released on payment of tax and penalty equal to the 50% of the value of the goods reduced by the tax amount paid thereon. A will have to pay 18,000 (Tax calculated at 18%) + 50,000 (penalty equal to 50% of value of goods) = Rs. 68,000 for release of the goods.
Scenario III - Section 129(1)(c)	A also has the option of furnishing security of Rs, 36,000 or Rs. 68,000 as per Section 129(1)(c).
Scenario IV	If A does not make payment of tax and penalty within 14 days, as per Article 129(6), proceedings under Section 130 will be initiated.

Besides being extremely onerous, it can be also extremely harsh if A had already paid tax as in the instant case and was detained only for lack of e-way bill as he will have to suffer tax again along with penalty for release of the goods.

Several writ petitions have been filed throughout the country challenging the vires of the section such as Shan Mohammad Vs. Union of India & Ors.^[17]

1. B.Interplay of Section 129 and Section 130

It is stated in Section 126(6), if there is failure to pay the amount of tax and penalty within fourteen days of detention or seizure under the section, further proceedings shall be initiated in accordance with the provisions of section 130. Section 130 talks about confiscation of goods or conveyance and levy of tax, penalty and fine thereof. This raised many questions such as whether Section 129 and 130 can be simultaneously invoked.

This question was extensively dealt with by the Gujarat High Court in Synergy Fertichem Pvt. Ltd. v. State of Gujarat^[18]. The lead Petitioners in the case were inter-alia engaged in import and sale of ceramic pigment ink. They were the distributors of a Spanish group and had imported a consignment of ceramic pigment ink from their principal after filling bill of entry, payment of customs duty as well as the IGST payable on such imports before clearance for home consumption. As the goods were perishable, the Petitioners initiated transport of the ceramic ink without waiting for the e-way bill. However, the goods were intercepted due to absence of e-way bill. After interception the petitioners had generated e-way bill and explained that e-way bill was not generated earlier due to the extreme perishable nature of the goods and that IGST had already been suffered on the goods. However, the authorities insisted for payment of tax and 100% penalty under Section 129 of the GST Acts and also fine in lieu of confiscation equal to the value of goods under Section 130 of the GST Acts. Therefore, for goods worth Rs. 39,43,272/- on which customs duty of Rs. 3,00,526/- and IGST of Rs. 7,09,789/- have already been paid, authorities were demanding an amount of Rs. 60,72,639/-. This was challenged by the petitioners for being manifestly arbitrary and violative of Article 14 of the Constitution. It was also argued by the petitioners that as they had already paid tax, there was no intention to evade payment of tax which is essential for invoking Sections 129 and 130.

It was held by the high court that Sections 129 and 130 of the GST Act are mutually exclusive and independent. It was noted by the court that both the sections start with a non-obstante clause and held that Section 130 of the Act is not dependent on Section 129(6) of the Act. As to whether both the sections can be simultaneously invoked, the court held that it is possible. It stated that at the time of detention and seizure of goods or conveyance, the first thing the authorities need to look into closely is the nature of the contravention of the provisions of the Act or the Rules. The second step in the process for the authorities to examine closely is whether such contravention of the provisions of the Act or the Rules was with an intent to evade the payment of tax. For the purpose of issuing a notice of confiscation under Section 130 of the Act at the threshold, i.e., at the stage of Section 129 of the Act itself, the case has to be of such a nature that on the face of the entire transaction, the authority concerned is convinced that the contravention was with a definite intent to evade payment of tax.

Further, the court held that Section 130 of the Act can be invoked even in cases where the amount of tax and penalty is paid in terms of the provisions of Section 129.

After laying down the general principles with regard to the applicability of Sections 129 and 130, the high court left it to the tax bench to decide about quashing of the confiscation notice. It is pertinent to note that Justice AC Rao, the puisne judge, expressed the view that the legislature should, once again, look into Sections 129 and 130 of the Act and amend the sections accordingly so as to remove certain inconsistencies in the two provisions.

1. C.Court's Interpretation of 'contravention of the provisions' of the Act or Rules

Due to the wide ambit of the phrase 'contravention of Act and rules', the courts had been flooded with writ petitions filed by tax payers when their goods and conveyances were intercepted under Section 129. In order to ameliorate the situation the government had by Circular No. 64/38/2018-GST dated 14.9.2018 that in case of technical errors in the documents accompanying the goods, provisions of Section 129 of the GST Acts may not be resorted to but instead goods may be released on payment of nominal penalty under Section 125 of the GST Acts.

However, in case a person in charge of a conveyance does not carry copy of statutorily required documents viz., invoice/bill of supply/delivery challan/bill of entry and valid e-way bill in physical or electronic form for verification or if the person in charge is carrying an invalid e-way bill, it would invite invocation of Section 129.^[19] Some of the important decisions given by the high courts on challenge of action under Section 129 is discussed below.

1. 1.Discrepancy in E-way Bill

M.S Steel and Pipes v. Asst. State Tax Officer^[20]

In this case, the petitioner's consignment was detained on the ground that there was a discrepancy in the e-way bill that accompanied the transportation of the goods. The alleged discrepancy was that while the consignment was supported by an invoice which contained the details of the goods transported as also the tax paid in respect of the goods, there was no mention of the tax amounts separately in the e-way bill that accompanied the goods.

It was contended on behalf of the department that as per Section 33 of the GST Act, there is an obligation on every person, who makes supply for consideration and who is liable to pay tax for such supply, to prominently indicate in all documents relating to assessment, tax invoice and other like documents, the amount of tax which shall form part of the price at which such supply is made. The petitioner's consignment was detained as the documents of the petitioner did not fully comply with Section 33 which in turn resulted in 'contravention of the Act and Rules' for the purposes of Section 129.

It was noted by the court that a reading of the Rule 138(A) of GST Rules clearly indicate that the e-way bill has to be in FORM GST EWB-01, and in that format, there is no field wherein the transporter is required to indicate the tax amount payable in respect of the goods transported. Ruling in favour of the taxpayer, the Court held that there was no contravention by the petitioner of any provision of the Act or Rule for the purposes of Section 129. It was held that if the statutorily prescribed form does not contain a field for entering the details of the tax payable in the e-way bill, then the non-mentioning of the tax amount cannot be seen as an act in contravention of the rules. It was also noted that the tax invoice clearly revealed the tax amount.

2. 2. Bonafide Misclassification of goods:

Hindustan Coca Cola Pvt. Ltd. v. Asst. State Tax Officer, SGST Dept., Palakkad^[21]

In this case the petitioner was a company engaged in manufacture and supply of fruit-based beverages. The petitioner's vehicles carrying fruit based drinks interstate were intercepted in Kerala on the premise that the goods were misclassified and shown to attract GST of 12% instead of 28%.

Quashing the detention order, the Kerala High Court held that detention of goods in case of a bona fide dispute was not correct and if there was concern of misclassification then the squad officer may intercept the goods and detain them for the purpose of preparing the relevant papers for submission to the assessing authority and nothing beyond.

3. 3.Wrong Invoice:

Umiya Enterprise v. Assistant State Tax Officer, State Goods and Service Tax Department, Squad No. IV and Ors.^[22]

The petitioner is a dealer in plywood, particle boards and allied items. The petitioner's supplier M/s. despatched plywood to the petitioner. However, the conveyance was intercepted alleging the defect that the element of tax happened to be wrongly shown as CGST and SGST @ 9% as against IGST of 18% in the tax invoice. However, the tax had been correctly declared as IGST in the E-way Bill.

The writ petition was disposed of on the condition that the detained goods and vehicle shall be released on the petitioner executing a simple bond without insisting on furnishing of bank guarantee for the demanded value.

4. 4.Undervaluation of goods:

K.P. Sugandh Ltd. and Ors. v. State of Chhattisgarh and Ors.^[23]

The petitioners were the manufacturers of Pan Masala and Tobacco Products. The petitioners had dispatched goods to its customer at Raipur vide vehicle belonging to the another transporter. While the goods were being transported, the petitioners had issued with a tax invoice as well as e-way bill generated and handed the same to the driver.

However, the vehicle and the goods were detained on the grounds of there being discrepancies in the valuation of the goods i.e. the price at which product was sold to the customer was not matching the MRP of the product.

Allowing the writ petitions, the Chhattisgarh High Court held that, merely because the manufacturer sells his products to its customer or dealer at a price lower than the MRP, as such cannot be a ground on which the product or the vehicle could be seized or detained and that the Inspecting Authorities for the alleged discrepancy could have only intimated the Assessing Authority for initiating appropriate proceedings.