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2022 (9) TMI 210 - GST
Levy of penalty under Section 129(1)(b) of the CGST Act - jurisdiction to detain goods and vehicle - allegation is that the vehicles carried consignments under 'Bill to – Ship to' concept, but the drivers were not in possession of invoices to support transport to 'Bill to' address in Tamil Nadu - HELD THAT:- It is not in dispute that the petitioner is a sub-contractor to M/s.ITD Cementation India Ltd., for the supply of jetty and pipe conveyor system together with allied electrical instrumentation and control works on EPC back to back basis between TANGEDCO and ITD Cementation India Limited. ITD Cementation India Limited had given letter of indent to the petitioner on 28.02.2019. The petitioner had issued purchase order to procure materials from M/s.Phoenix Conveyor Belt India Private Limited for the purchase of pipe conveyor belts and its accessories to be used for the work at TANGEDCO. TANGEDCO is in the process of establishing of 2 x 660 MW Super Critical Thermal Power Project at Udangudi, Thoothukudi District.
All India Road Transport Agency name was not recorded in the transport invoices. But, the consignment notice has been rightly recorded, which finds place in the bills. The e-way bill is dated 26.07.2022, in which, the other details such as, e-way bill number, GSTIN number of the supplier and recipient, place of despatch, place of delivery, document number and code are all properly recorded.
It is seen that for calculation of applicable penalty, valuation has been done, thereafter, the freight charge at the rate of 2% and gross profit at the rate of 10% taken into account and penalty imposed against the petitioner. As per the Circular of the Commissioner, the Intelligence/Roving Squad detained the vehicles and thereafter, all the records to be handed over to the Jurisdictional Officer or to the Review Cell and thereafter, it is for the Jurisdictional Officer to pass orders on the point of classification and valuation - it is not in dispute that the pipe conveyor belt is a customized article, which is used exclusively for the project of TANGEDCO at Udangudi. This being so, there is no possibility of diversion of the material and thereby, evasion of duty would arise.
Considering the nature of contract business, the only mistake committed by M/s.Phoenix Conveyor Belt India Private Limited is that, in the invoice, instead of ITD Cementation India Limited, the petitioner's name is mentioned, except the said mistake, all other particulars properly recorded and 14 vehicles already reached the destination, five vehicles are in detention and 15 vehicles are in transit. It is seen that the petitioner already uploaded the particulars in the G.S.T. Portal even before the detention - petitioner to produce all the documents to the jurisdictional assessing officer, give his explanation and it is for the assessing officer to see whether the triangular transaction 'Bill to', 'Ship to' is complete and thereafter, process the same.
This Court quashes the impugned detention orders alone and directs the second respondent to forward all the documents to the concerned jurisdictional assessing officer, who shall take up the issue and decide the same after giving opportunity to the petitioner - Petition disposed off.