2022 (2) TMI 1484 - HC - GST

Penalty imposed under section 129(3) of the Central Goods and Services Tax Act 2017 - whether there was an e-way bill as contemplated under Rule 138(14) of the CGST Rules and that in such circumstances entertaining this writ petition under Article 226 the Constitution of India is impermissible? - HELD THAT - Rule 138(2A) of CGST Rules provides for generating an e-way bill either before or after commencement of the movement and if the transportation is through special carriers like the railways or the airways the goods should be released by the special carrier only after production of the e-way bill. The section is explicit that the e-way bill must be generated either before or after commencement of movement. Obviously the e-way bill must be generated before completion of movement and as per the proviso the e-way bill must be produced at the time of delivery. However whether the transportation was only through railways or whether any other mode of conveyance was involved during transportation is a question of fact to be determined. Further whether the petitioner satisfied the requirements of Rule 138(14)(b) especially the alleged transportation from the place called Alipur to New Delhi Railway Station by a non-motorised conveyance are all matters which are in the realm of disputed facts. The assessing officer had found irregularities even in respect of the e-way bill submitted which also indicates an area of disputed facts. The petitioner ought to proceed under the statutory remedies available and not by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. Petition dismissed.

Summary

In the case before the Kerala High Court, presided over by Justice Bechu Kurian Thomas, the petitioner challenged a penalty imposed under Section 129(3) of the Central Goods and Services Tax Act, 2017. The penalty was related to the transport of a CNG kit from New Delhi to Thrissur, which was intercepted at Ernakulam Railway Station. The petitioner argued that the e-way bill, generated post-transportation, was permissible under Rule 138 of the CGST Rules, as the goods were transported by rail.

The government pleader contended that the case involved disputed facts, particularly concerning the generation and timing of the e-way bill as per Rule 138(14) of the CGST Rules. Rule 138(2A) mandates that an e-way bill must be generated either before or after the commencement of movement and produced at delivery, especially when transported by special carriers like railways.

The court noted that determining whether the transportation involved only railways or other conveyance modes was a factual matter. Additionally, compliance with Rule 138(14)(b) and alleged irregularities in the e-way bill were also disputed facts. Consequently, the court concluded that the petitioner should seek statutory remedies rather than invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition was dismissed, allowing the petitioner to pursue statutory remedies as per the law.