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2019 (11) TMI 1512 - Commissioner - GSTDetention/seizure of goods and conveyance in transit - E-way bill was incomplete inasmuch as Part-B of E-way Bill was not filled/completed in gross negligence - violation of provisions of Section 68 of CGST/HGST Act, 2017 and Rule 138 of CGST/HGST Rules, 2017 read with Section 20 of IGST Act, 2017 - HELD THAT:- From perusal of Section 68 of Haryana GST Act, it is clear that the government is empowered from in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed - As per Rule 138 of the Rules, 2017, any registered person who causes movement of goods or assignment valuation exceeding ₹ 50,000/- must upload the information in a shape of e-way bill containing Part-A and Part-B. The appellant violated the provisions of Section 68 of the Act ibid and Rule 138 of the Rules. In any tax administration the provisions for Inspection, Search, Seizure and Arrest are provided to protect the interest of genuine taxpayers (as the tax evaders, by evading the tax, get an unfair advantage over the genuine taxpayers) and as a deterrent for tax evasion. These provisions are also required to safeguard Government’s legitimate dues. Thus, these provisions act as a deterrent and by checking evasion provide a level playing field to genuine taxpayers - The statutory scheme is that Chapter XVI of the combined Acts deals with inspection, search, and seizure. Section 129 under Chapter XIX of the Acts provides the mechanism for detention, seizure, and release of goods and conveyances 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. In the present case, the Proper Officer, Panchkula has imposed penalty on the ground that the goods in question were being transported without any proper and genuine document. The presumption was drawn in the matter for violation of law by not fill up the part-B of the E-way Bill in question. The checking officer has not considered the factual aspect of the matter before holding that there was violation of law. The documents produced by the driver-cum-person in-charge of the goods at the time of checking of the goods under dispute do not indicate that any attempt was made to evade tax. Record of case indicates that all the material particulars and information which were required and available in the documents, before issuing detention memo i.e. MOV-06 on 2-5-2018 by the Proper Officer, hence, no mala fide intention are proved or established. Under these circumstances, the question is whether penalty can be imposed only on the basis without establishing of mens rea or not for violation of law or attempt to evasion of tax. If the facts and circumstances of the present case are evaluated in the backdrop of the aforesaid principles laid down by the Hon’ble Supreme Court in the case of matter of imposition of penalty, it would be seen that in the present case, penalty has been imposed mechanically without any dishonest intention or malice or mens rea having been established or proved. The impugned order dated 4-5-2018, imposing tax and penalty under Section 129(3) of the HGST/CGST/IGST Acts upon the appellant is hereby set aside. However, a penalty of ₹ 5,000/- imposed under Section 125 of the IGST/CGST Act for not mentioning the proper detail in the documents (i.e. E-way Bill) - Appeal allowed.
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