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2023 (10) TMI 635 - HC - GSTLevy of penalty - non availability of the delivery challan with the vehicles - order passed without appreciating the fact that the petitioner had already ensured all the compliances under CGST Act - HELD THAT:- Admittedly, the petitioner had generated e-way bills pertaining to both the vehicles. The vehicles were carrying invoices, e-way bills and bilty. It is not a case of tax evasion. All the dues had already been paid, including the tax. Documents have been referred to by the learned counsel for the petitioner to indicate that after tax had been paid, on the direction of SAIL, the goods were handed over to the petitioner at Kanpur. A bare reading of Section 129 of the Act, prior to the amendment dated 01.01.2022 indicates that essentially it had an element of tax also because sub (a) to sub-Section (1) to Section 129 of the Act, speaks of release of a vehicle on payment of applicable tax and penalty. The words “applicable tax” has now been deleted from this provision. Goods are to be transported alongwith certain documents as specified under the Act. If every non-compliance in respect of the documents that a vehicle should carry may attract the provisions of Section 129 of the Act, what would be those situation in which the provisions of Section 122 of the Act may be invoked? A bare reading of Section 130 of the Act, makes it clear that here what is to be established that (i) there has been non-compliance of the provisions of the Act, which leads to the evasion of the Tax and further the evasion of tax was intentional - initially when Section 129 of the Act was enacted, the legislature had considered that there was some tax element, which was to be addressed before the release of the vehicle. Section 122 of the Act, on the other hand, is simpliciter. Section 122 (xiv) of the Act makes one liable to some penalty if a person transports any taxable goods without the cover of the documents as may be specified in this behalf. It has no tax element. In the instant case, there has been no evasion of tax. There has been no intention to evade tax. Every information was with the GST authorities. Even if the petitioner was not carrying any delivery challan, there was no additional information that could have been provided by virtue of production of delivery challan. E-way bill was properly generated. Tax was properly paid. It was mere non-compliance of the provisions of Section 55 (5) (b) of the Act. This Court is of the view that instead of proceeding under Section 129, the respondents authorities ought to have proceeded under Section 122 of the Act - this Court is of the view that impugned orders are not in accordance with law - Petition allowed.
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