Failure to Issue Section 129 Notice Within Mandatory Seven Days

Failure to Issue Section 129 Notice Within Mandatory Seven Days Invalidates Penalty and Detention Proceedings

Issue

Whether the seven-day timeline prescribed under Section 129(3) of the CGST/JKGST Act for issuing a notice post-detention of goods and conveyance is mandatory, and whether a delay of even one day in issuing the notice invalidates the penalty order.

Facts

The goods and conveyance of the assessee were detained under Section 129 of the CGST/JKGST Act on September 2, 2024.
The notice specifying the detention and proposed penalty was issued on September 11, 2024, and uploaded on the GST portal on September 12, 2024 (beyond the 7-day period from detention).
The Deputy Commissioner passed a penalty order under Section 129(3) on September 17, 2024.
The First Appellate Authority affirmed the penalty order on October 28, 2024.
The assessee challenged both the penalty order and the appellate order before the High Court, asserting a breach of the mandatory seven-day statutory limitation period under Section 129(3).

Decision

Held in favor of the assessee; the statutory timelines under Section 129(3) using the word ‘shall’ are mandatory, serving to regulate coercive statutory powers and protect primary business rights.
Held in favor of the assessee; interpreting the seven-day limitation as merely directory would defeat the statutory legislative intent of preventing prolonged detention of goods and conveyances in transit.
Held in favor of the assessee; the absence of explicit statutory consequences for missing the deadline is not decisive when the underlying objective mandates strict compliance.
Held in favor of the assessee; the notice uploaded on September 12, 2024, breached the seven-day period from the date of detention (September 2, 2024).
Held in favor of the assessee; a delay of even one day vitiates the entire detention proceedings, resulting in the setting aside of both the appellate order and the Section 129(3) penalty order (with liberty granted to the Revenue to pursue other permissible statutory remedies).

Key Takeaways

Strict Mandate of Section 129(3) Timelines: The requirement to issue a notice within seven days of detaining goods or conveyances is mandatory and legally binding on tax authorities.
One-Day Delay Vitiates Detention: Non-compliance with the seven-day timeline, even by a single day, invalidates the detention proceedings and renders any subsequent penalty order null and void.
Protection Against Coercive Power: Statutory timelines attached to coercive enforcement actions (such as seizure and detention) must be strictly construed to safeguard taxpayers’ rights against indefinite administrative delays.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

Danish Hassan

UT of J&K

Sanjeev Kumar, Actg. CJ.
and MOHD YOUSUF WANI, J.

WP(C) No. 2538 of 2024

SEPTEMBER 7, 2026

Mohsin Qadri, Adv. for the Petitioner. Ms. Maha Majeed, AC and Mohsin Qadri, Sr. AAG for the Respondent.

ORDER

1. Impugned in this petition filed by the petitioner under Article 226 of the Constitution is an order dated 28.10.2024, passed by the Appellate Authority Appeals I-State Taxes Department Kashmir in appeal titled as “M/s Stage Trading Pvt. Ltd. Srinagar v. UT of J&K & Ors.”, whereby the Appellate Authority has confirmed the order of Deputy Commissioner, State Taxes Enforcement (Central) Kashmir dated 17.09.2024 passed under Section 129 (3) CGST 2017 [“the Act].

2. The impugned order passed by the Deputy Commissioner, State Taxes Enforcement (Central), Kashmir and order in appeal passed by the Appellate Authority are assailed by the appellant primarily on the ground that the Proper Officer having failed to serve upon the petitioner a notice within a period of seven days from the date service of notice of detaining/seizing of goods or conveyance has acted in violation of provisions of Section 129(3) of the Act, and, therefore, the orders impugned are vitiated in law. Reliance is placed by the learned counsel appearing for the petitioner on a judgment rendered by this Court on 23.07.2026 in WP (C) No. 2434/2025 titled asMohd Hazzak Lohar v. Commissioner State Tax117 GST 164/112 GSTL 207 (Jammu & Kashmir and Ladakh)whereby this Court has held the provisions of Sub-section 3 of Section 129 of CGST Act, mandatory in nature.-

3. Heard learned counsel for the parties and perused material on record.

4. What is held by this Court is set out in para 17, 18 and 19 which for facility of reference are set out below:-

17. We are, thus, inclined to concur with a view taken by various High Courts and the High Court of Gujarat that the timelines under Section 123 of the Act are mandatory. This is so primary for the following reasons:

(i)

The provision regulates exercise of coercive statutory power;

(ii)

It protects valuable primary rights;

(iii)

The legislature has prescribed timelines using the word “shall”;

(iv)

Treating timelines in Section 129(3) as directory would defeat the legislative purpose of preventing prolonged detention and seizure of goods, conveyance or documents of the transporter or the assesee;

(v)

The absence of express consequences of a mandatory provision is not always decisive.

(vi)

The legislative intent, object of provision and the nature of right affected are governing tests.

(vii)

Whenever the statute authorizes coercive action, like seizure or detention, the Courts insist on strict compliance with the statutory procedure.

18. It is, thus, beyond any pale of discussion that whether the provision is mandatory or not, depends upon the legislative intent, context, object and the consequences of non-compliance.

19. From the perusal of the provision in question in the context of the scheme of the Act of 2017, it is axiomatic that the timelines have been introduced to prevent arbitrary detention, prolonged seizure and harassment to the trader. It is in keeping with the aforesaid intention that the legislature has used the expression “shall” at two places in Section 129 (3) of the Act.

5. When we examine the case on hand in the light of law laid down in Mohd. Hazzak Lohar (supra), we find that in the instant case the Proper Officer detained the goods along with conveyance on 02.09.2024, and, therefore, was under an obligation to issue notice of show cause within seven days of such seizure and detention.

6. The notice intimating order of detention and seizure and specifying the penalty payable was issued on 11.09.2024 and uploaded on 12.09.2024. The Proper Officer was further under an obligation to pass an order for payment of penalty within a period of seven days from the date of service of such notice.

7. The notice dated 11.09.2024 admittedly was uploaded on 12.09.2026 i.e beyond a period of seven days. In that view of the matter, the mandate of Sub-Section 3 of Section 129 of the Act was violated by the Proper Officer. There was a delay of one day in issuing the notice, which vitiates the entire proceedings.

8. For the foregoing reasons, the writ petition is allowed. The impugned order of the appellate Authority dated 28.10.2024 and order of Proper Officer dated 17.09.2024 are set aside, having been issued in violation of the mandatory provisions of Sub Section 3 of Section 129 of the Act. We, however, make it clear that notwithstanding the quashing of the notice/order dated 11.09.2024 uploaded on 12.09.2024 the proceedings, if any, permissible under the provisions of the Act of 2017 can still be pursued by the respondents if required.

9. Let the amount of penalty which has been deposited before this Court in terms of order dated 17.12.2024, be released in favour of the petitioner after due verification.

10. Disposed of.