Recently, Hon’ble Allahabad High Court in the case of M/S Eco Plus Steels Pvt. Ltd Versus State of U.P and 3 others reported as 2024 (4) TMI 291 discussed the question “whether mere presence of additional stock would result in confiscation and subsequent penalty” and held that it cannot so result because section 130 deals with point of time when the event of supply occurs and not at any point earlier than that. Further, Hon’ble Allahabad High Court also observed that delay of 10 months in issuing the notice of confiscation and 11 months in issuing the order of confiscation from the date of survey leads to an inference that the authorities have acted in a callous manner. Hon’ble Allahabad High Court also stressed on that the finding related to excess stock should be supported by valid reasons.
Read more about this case below:
Facts of the cases
- Two writ petitions have been filed by the petitioner:
- First Writ petition was filed assailing the order dated 25th September 2019 passed by Assessing Authority as well as the order dated 5th April 2022 passed by Appellate Authority wherein the confiscation u/s 130 of the Act and penalty u/s 122 the Act were confirmed against the assesse.
- Second Writ petition has been filed assailing the orders passed by Assessing officer and Appellate Authority wherein the liability arising out of additional stock that was present in the premises of the petitioner was upheld under section 74 of the Act.
Question of framed
- Whether mere presence of additional stock would result in confiscation and subsequent penalty u/s 130 of the Act and/or liability u/s 74 of the Act?
Observations of the Court
- Hon’ble High Court referred to the two judgements of the coordinate bench in the case of M/s Maa Mahamaya Alloy Pvt. Ltd. Vs State of U.P. and others and M/s Metenere Ltd. Vs Union of India and observed as under:
- Section130 of the Act deals with the liability to pay the tax arising at the time of supply, and not at any point earlier than that.
- Stock was not weighed or counted.
- The calculation of the stock by the Appellate Authority on the basis of an estimate is without any basis in law. When the Appellate Authority had come to the finding that the officers in the survey did not carry out the quantification of the stock in the correct manner, there was no reason for the Appellate Authority to uphold the confiscation and penalty.
- Delay of 11 months in passing the order of confiscation and 10 months in issuing notice of confiscation itself leads to an inference that the authorities have acted in a callous manner.
- Finding of excess stock is clearly without any basis in law and illegal.
- ‘Burden of proof’ for imposition of penalty and confiscation of goods is on the Department.
Decision of the Court
- On the basis of observations and findings, the Hon’ble High Court directed the authorities to return the amount, if any, deposited by petitioner within eight weeks.
- The orders were quashed and set aside.
Paksh Remarks
- It has been seen that investigations are being carried out at godowns of many dealers wherein the allegation of ‘excess stock’ has been levelled against them. Therefore, this judgement comes in a way to support such kind of investigations wherein the allegation of ‘excess stock’ has been incorrectly levied without any reasonable basis and the demands, if any, confirmed against those assesses is liable to be set asides for the reasons discussed in this judgement.