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2024-TIOL-1117-HC-MUM-GST
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 2611 Of 2021
With Writ Petition No. 5900 Of 2021
With Writ Petition No. 5899 Of 2021
FABRICSHIP PVT LTD
A PRIVATE LIMITED COMPANY, FORMED UNDER THE LAWS
OF INDIA HAVING ITS REGISTERED, OFFICE AT PLOT-26/I, -13
LUCRATIVE INDUSTRIAL COMPLEX, NEAR ATODRA CHOKDI
OLPAD SAYAN ROAD, VILLAGE: ATODRA
TAL: OLPAD, SURAT-394130
Vs
1) THE UNION OF INDIA
THROUGH THE SECRETARY, MINISTRY OF LAW AND JUSTICE
4TH FLOOR, A WING, RAJENDRA PRASAD RD
SHASTRI BHAVAN, NEW DELHI-110001
2) THE STATE OF MAHARASHTRA
THROUGH THE MINISTRY OF FINANCE, 3RD FLOOR
MANTRALAYA, MUMBAI-400032
3) THE COMMISSIONER OF STATE TAX
8TH FLOOR, ROOM NO.831, GST BHAVAN, MAZGAON
MUMBAI-400010
4) SECRETARY
MINISTRY OF FINANCE, UNION OF INDIA, DEPT. OF REVENUE
NEW DELHI-4110001
K R Shriram & Jitendra Jain, JJ
Dated: June 21, 2024
Petitioner Rep. by: Mr Ishaan Patkar i/b Alaksha Legal
Respondent Rep. by: Mr Anjani Kumar Singh a/w Mr D P Singh, Ms S D Vyas, Addl. G P a/w Mr M M Pable AGP
GST - Petitioner challenges an Order dated 15 December 2020 along with the corrigendum dated 22 December 2020 passed under Section 129(1) Act, 2017 levying penalty with regard to three consignments not being accompanied with e-way bill.
Held: Section 129(1)(a) of the MGST Act provides for penalty equal to one hundred per cent of the tax payable on goods detained or seized - The phrase "tax payable" would contemplate that the transaction is liable for tax and on which the tax becomes payable - In the instant case, when the machinery is being transported from JNPT to petitioner's factory after Customs clearance, there is no tax payable under the GST Act - In the instant case, when petitioner imports machinery and after Customs clearance, transports the said machinery to its own factory, it cannot be said that such a transportation would fall within the definition of the term "supply" as defined by Section 7 - This is so because for a "supply" to fall under Section 7 there has to be more than one person or entity between whom the transaction of supply should take place - Section 2(31) of the MGST Act defines "consideration" to include any payment made or to be...