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Showing 161 to 180 of 1484 Records
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2025 (3) TMI 1324
Misdeclaration of the quantity and value of the imported goods - violation of provisions of the Customs Act 1962 and also a violation of the EPCG licence and the Foreign Trade Policy - on examination of the imported container one headstock and 12 drums were found in excess - excess quantity was not included in the EPCG License available with the appellant at the relevant time of import - HELD THAT:- In this case the importer has subsequently obtained an EPCG licence covering the excess goods discovered. Although this was brought to the notice of the Original Authority, no decision has been recorded on the same. Once the importer produces a licence it is for the Customs authorities to verify its validity and extends all benefits to the goods if covered by the same. Further now the appellant has also produced a copy of EODC dated 09.01.2024, purportedly evidencing the fulfillment of their export obligation, which requires verification.
It has been held by the Hon’ble Supreme Court in Atul Commodities Pvt. Limited v. CC, Cochin [2009 (2) TMI 18 - SUPREME COURT] that if any doubt or question arises in respect of interpretation of Foreign Trade Policy or in the matter of classification of any item of the ITC (HS) or in the Handbook, the said question or doubt shall be referred to DGFT, whose decision thereon shall be final and binding. We find that a similar position obtains with regard to extending the benefit of an EPCG licence for which EODC is stated to have been issued.
There has been a contravention of the provisions of the Customs Act 1962, in as much as there has been imports of goods in excess of the declaration made in the Bill of Entry and which was not covered by the EPCG license available with the appellant at the time of import. Tendering of an incorrect invoice was also alleged - The Customs Act 1962 and the Foreign Trade (Development and Regulation) Act, 1992 (FTDR Act) operate in their own spheres. Hence this division of authority between the DGFT and Customs has to be adhered to, in line with the jurisdiction granted by the respective statutes under which the authorities operate. However, whether a penalty should be imposed for failure to perform a statutory obligation, under the Customs statute, is normally a matter of discretion of the authority to be exercised judicially, based on the current facts and circumstances of the case, unless stated otherwise in this statute.
Conclusion - Verification of the subsequent EPCG licence and EODC certificate is essential to determine the applicability of benefits for the excess goods.
The impugned order is set aside and the matter is remanded to the Original Authority, for de novo adjudication - Appeal disposed off by way of remand.
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2025 (3) TMI 1323
Valuation of imported goods intended for re-export - re-determination of value assessed to duty at rate corresponding to tariff item 8479 8999 of First Schedule to Customs Tariff Act, 1975 - HELD THAT:- The first appellate authority failed to take cognizance that the original authority should have read section 46 of Customs Act, 1962 as only the first of two ‘stepping stones’ by which the goods could legally be cleared for home consumption in terms of section 47 of Customs Act, 1962 and that assessment, either under section 17 of Customs Act, 1962 or under section 18 of Customs Act, 1962, must necessarily precede clearance for home consumption for the ‘proper officer’ to permit extinguishment of customs jurisdiction as envisaged in section 47 of Customs Act, 1962 Mere filing of bill of entry, under section 46 of Customs Act, 1962 and of essence to build in contingencies of ‘relevant date’ for rate of duty and tariff valuation, does not trigger empowerment of levy and assessment to duty in section 17 of Customs Act, 1962 which is the only stage for recourse to section 12 and section 14 of Customs Act, 1962 by ‘proper officer’ therein. These – the ‘charging’ and ‘valuation’ provisions – are stipulative and, like the definitional provision, to be referred to when embarking upon the machinery provisions in Customs Act, 1962.
Otherwise, in terms of section 46 of Customs Act, 1962 and chapter IX of Customs Act, 1962, the ‘imported goods’ are to be deposited, in a public warehouse or private warehouse, as the case may be, until clearance is to be effected either for home consumption under section 68 or for export under section 69 of Customs Act, 1962. A comparison of section 47 of Customs Act, 1962 and section 68 of Customs Act, 1962 makes it abundantly clear that these are mutually exclusive and that, once goods are warehoused, section 47 of Customs Act, 1962 ceases to be of relevance. The ‘trigger happy’ adjudication was, thus, upheld in appellate proceedings without application of mind.
The original authority and the first appellate authority are in need of refreshing their approach to assessment procedure; the fault may, probably, not be limited to this lack of appreciation but also in oversight – supervisory and statutory. Empowerment to review, as prescribed in chapter XV of Customs Act, 1962, appears to have been observed in its breach. The malaise is, thus, systemic. The hazard, in consequence, may be oblivion. A copy of this order may be placed before the Chairman, Central Board of Indirect Taxes & Customs (CBIC) for appropriate remediation if ‘ease of doing business’ is to have a chance.
Conclusion - The re-determination of value for the goods in question is unjustified, as the goods were intended for re-export and not for home consumption. The Customs Valuation Rules, 2007, and Section 14 of the Customs Act, 1962, are inapplicable in this context.
The impugned order set aside - appeal allowed.
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2025 (3) TMI 1322
Refund of service tax paid on mobilization advance - applicability of limitation period prescribed u/s 11B of the Central Excise Act, 1944 - HELD THAT:- In disputes over refund of duties of central excise, it has been consistently held that any claim of refund would have to pass through the sieve of section 11B of Central Excise Act, 1944 as, even with leviability arising upon manufacture, the tax liability would be discharged only upon clearance of goods which not only offers corporeal ascertainment of taxable event but also as a consequence of assessment – whether by self or in terms of section 11A of Central Excise Act, 1944. Per contra, the taxability under section 66 of Finance Act, 1994 would arise only upon ‘taxable service’ being rendered; ‘service’ is not discernable except with satisfaction of recipient manifested by transfer of consideration and creating liability only then. Consequently, any tax collected upon rendering of service would necessarily have to comply with the law of limitation set out in section 11B of Central Excise Act, 1944 and not in dispute any more than clearance of the goods under Central Excise Act, 1944 would be.
Inasmuch as ‘taxable service’ did not exist, tax may not be acknowledged as leviable or having been collected as tax and in much the same way as topping up of the erstwhile ‘personal ledger account (PLA)’ to enable debits upon clearance of the goods under Central Excise Act, 1944. In much the same way as such payments were advance deposit and not liable to be scrutinized within the template of section 11B of Central Excise Act, 1944, the remittance of amount towards an ‘intended service’ which never happened would not have to go through the restrictions imposed under section 11B of Central Excise Act, 1944 for effecting the sanction.
Conclusion - The refund claim is not barred by the limitation period under section 11B of the Central Excise Act, 1944, as the payment was made under a mistaken belief and classified as a deposit.
The sanction granted by the original authority is restored - appeal allowed.
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2025 (3) TMI 1321
Recovery of service tax on the premium collected by M/s Deposit Insurance and Credit Guarantee Corporation (DICGC) with interest and penalty - scope of remedy before the Tribunal under section 86 of Finance Act, 1994 - jurisdiction under section 86 of the Finance Act, 1994, to dispose of the appeal concerning the demand for interest and penalties related to the alleged short-payment of tax - HELD THAT:- Without going into the thrust of the submissions made by both sides on the nature of the dispute as set out by them and narrated, it is noted that the lack of legal sanction for recovery ₹ 118,64,34,956, espoused for adopting ‘cum-tax’ computation, has attained finality. As the liability to tax does not arise and, in any case, ordered to be refunded to the assessee, charging of interest would not arise notwithstanding the date on which those deposits had been made.
Relying solely on the facts and the invalidation of short-payment of tax on premium collected between October 2011 and December 2013, the proceedings for recovery of interest set aside. Consequently, the penalty imposed does not survive.
Conclusion - Service tax cannot be charged as a component of the premium when the governing statutes do not permit recovery beyond the stipulated premium. Additionally, interest and penalties cannot be imposed in the absence of a legally sanctioned tax liability.
Appeal allowed.
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2025 (3) TMI 1320
Exemption under N/N. 25/2012 dated 28th June, 2012 as amended by the subsequent Notification dated 30.01.2014 - NIT Patna and IIT Mandi fall within the definition of “Governmental Authority” - HELD THAT:- The matter is already settled by Hon‟ble Patna High Court in the case of M/s Shapoorji Paloonji & Company Pvt. Ltd [2016 (3) TMI 832 - PATNA HIGH COURT] and further affirmed by Hon‟ble Supreme Court in [2023 (10) TMI 748 - SUPREME COURT]. Hon'ble Patna High Court has analysed the provisions of the above Notification in para 11 of their order and held that the construction activities undertaken by the petitioner in respect of Academic blocks of IIT, Patna are exempt from service tax .
This Tribunal has also considered this issue in the case of M/s. Dhanraj Jethwani Vs. Commissioner of CGST, Customs, Central Excise and Service Tax [2024 (6) TMI 133 - CESTAT NEW DELHI], where it was held that MANIT is covered under “Governmental Authority” and it can not be made subject to the condition of 90% or more by way of equity or control to carry out any function entrusted to a Municipality under Article 243W of the Constitution.
Both NIT Patna & IIT, Mandi are covered as “Governmental Authority” as defined under clause No. 2(s) of Notification No. 25/2012-ST dated 28thJune, 2012 and as amended vide Notification No. 2/2014-ST dated 30thJanuary, 2014. Accordingly, the services provided to a "Governmental Authority" by way of construction, erection, commissioning, installation, repair, maintenance, renovation or alteration of any civil structure are exempt. Further, as per Srl. No. 29(h) of the above Notification, when principal contractor M/s. NBCC is exempt from Service Tax, their sub-contractor (the appellant in this case) is also exempted.
Exemption from service tax on the works contract services provided, considering the specific contractual and statutory conditions - HELD THAT:- M/s. NBCC was awarded work order by NIT, Patna vide MOU dated 23.07.2013 and by IIT, Mandi vide MOU dated 21.03.2014. These works were further sub-contracted by M/s. NBCC to the appellant vide letter reference No. NBCC/RBG (E)T (3)/2015/607 dated 08.04.2016 (in case of NIT Patna)& Letter reference No. NBCC/GM/IIT/MANDI/2015/3000 dated 02.05.2015, (in case of IIT Mandi). Both these contracts have been entered into between the appellant and their principal after 01.03.2015.
Both the work orders were awarded to the appellant after 01.03.2015 and therefore the conditions, as mentioned in para 12, need to be verified by the lower authorities - this case is fit for remand to the adjudicating authority to examine whether the conditions imposed by Finance Act, 2016 are satisfied in this case or not and accordingly, decide the liability of service tax upon the appellant or otherwise.
Confiscation - NIT Patna and IIT Mandi are "Governmental Authorities," exempting related services from service tax. However, the case is remanded for further examination of the appellant's exemption eligibility under the Finance Act, 2016 conditions.
Appeal disposed off by way of remand.
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2025 (3) TMI 1319
Classification of services - Works Contract service or Commercial or Industrial Construction Services? - invocation of extended period of limitation - HELD THAT:- In the instant case, there is no dispute that the work undertaken by the appellants was construction activity involving both labour and material. Appellants were registered contractors with Kerala Sales Tax Authorities and also paid Sales Tax/VAT under the Kerala Sales Tax Act and Kerala VAT Act on the activities under dispute. Therefore, the first condition of the definition of ‘works contract service’ is satisfied. Since the issue is squarely covered by the judgment of the Hon’ble Supreme Court in the case of Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT], the activities carried out by the appellant is falling under ‘works contract service’ and they are not liable to pay service tax prior to 01.06.2007.
As regarding demand of service tax from 01.06.2007, since the appellant paid due amount under works contract service, the demand confirmed as per the impugned order under ‘Commercial or Industrial Construction Service is unsustainable.
Conclusion - The demand for service tax under 'Commercial or Industrial Construction Service' is unsustainable for the period prior to 01.06.2007. The invocation of the extended period of limitation is also found to be unsustainable due to the absence of evidence of suppression of facts by the appellant.
Appeal allowed.
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2025 (3) TMI 1318
Classification of service provided by the appellant - Repair and Maintenance Service or Business Auxiliary Service (BAS)? - invocation of extended period of limitation - HELD THAT:- The issue is well settled in appellant’s own case, LARSEN & TOUBRO LTD. & ORS. VERSUS CCE, CHENNAI & ORS. [2006 (6) TMI 3 - CESTAT NEW DELHI (LB)] where the Larger Bench of the Tribunal after referring to the Agreement dated 01.02.1998 categorically held that the activity carried out by the appellant is falling under the category of ‘Business Auxiliary Service’ and accepting the above fact, the respondent had accepted the service tax liability as applicable with effect from 10.09.2004. Considering the same, the demand confirmed in the impugned order under the category of ‘Repair and Maintenance Service’ is unsustainable.
Conclusion - The services provided by the appellant fall under BAS and that the demand under 'Repair and Maintenance Service' is unsustainable.
Appeal allowed.
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2025 (3) TMI 1317
Dismissal of appeal on the basis that the Appeal has not been signed by the authorized signatory and the Appellant (the Petitioner herein) has not submitted a Board Resolution appointing the said person as the authorized signatory to sign the Appeals, documents or any other proof of her being the authorized signatory of the Appellant - HELD THAT:- If the Appellate Authority wanted to verify the authority of Ms. Gracie Fernandes, it was his duty to call upon the Appellant, if he had any doubts with regard to the authority. In fact from the record we find that there is a Board Resolution authorizing Ms. Gracie Fernandes, inter alia to institute, depose, defend, compromise, appear, verify, sign, affirm and/or present papers, applications, petitions, affidavits and other documents under the applicable laws before the High Court, Supreme Court, Goods and Services Tax Authorities and Appellate Tribunal, Advance Ruling Authorities of the Goods and Services Tax etc. This Board Resolution can be found at Exhibit-H to the Petition. When all this was brought to the notice of the learned advocate appearing on behalf of the Respondent, he fairly stated that the impugned order could be quashed and set aside and the matter remanded for a denovo consideration.
Conclusion - The Appellate Authority must issue a reasoned order addressing all submissions and provide a list of any relied-upon judgments or orders, including unreported ones, to the petitioner.
The impugned order dated 30th July 2024 is set aside - petition allowed by way of remand.
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2025 (3) TMI 1316
Challenge to SCN concerning the same tax period and subject matter u/s 73 of the KGST Act - HELD THAT:- As rightly contended by learned counsel for the petitioner in relation to very same tax period 2019-2020 and the same subject matter in respect of the very same petitioner, both 4th respondent - The Commercial Tax Officer, Ramanagara as well as the 5th respondent - the Commercial Tax Officer(Audit), Channapatna have passed similar orders, under identical circumstances against the very same petitioner under Section 73(9) of the KGST Act, which is impermissible in law.
It is also relevant to state that in view of the specific submission made on behalf of the petitioner that he intends to avail the benefits of Amnesty Scheme as contemplated under Section 128 (A) of the KGST Act, it is deemed appropriate to set aside both the impugned orders at Annexure - A dated 27.06.2024 and Annexure -B dated 31.08.2024 and remit the matter back to the 4th respondent - The Commercial Tax Officer, Ramanagara for re-consideration afresh, in accordance with law and by issuing certain directions.
Conclusion - The petitioner is granted the liberty to pursue the Amnesty Scheme under Section 128(A) of the KGST Act, with the 3rd respondent directed to facilitate this upon the passing of appropriate orders by the 4th respondent.
Matter is remitted back to the 4th respondent - The Commercial Tax Officer, Ramanagara for reconsideration afresh in accordance with law - petition allowed by way of remand.
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2025 (3) TMI 1315
Suspension of petitioner's registration under the UPGST Act, 2017 on January 3, 2024 w.e.f. January 3, 2024 - HELD THAT:- It does merit acceptance that the petitioner was not obligated to visit the GST portal to receive the show cause notices that may have been issued to the petitioner for 2017-18 through e-mode, preceding the adjudication order dated August 20, 2024 passed in pursuance thereto.
No useful purpose may be served in keeping the petition pending or calling counter affidavit at this stage or to relegate the present petitioner to the forum of alternative remedy.
Since essential requirement of rules of natural justice has remained to be fulfilled, the order dated August 20, 2024 set aside - petition disposed off.
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2025 (3) TMI 1314
Cancellation of the petitioner's GST registration - Violation of Sections 25 and 29 of the GST Act - HELD THAT:- In the present case, the appellate authority has rejected the appeal on the ground that while applying for registration, HSN / SAC code has been disclosed, therefore, business undertaken by the petitioner under two different registrations are one and same cannot be bifurcated into two business verticals.
Further, the record shows that the conditions have been prescribed under Rule 21 for cancellation of registration, which have not been followed in the impugned order but only on the basis of reflection of HSN / SAC code in the registration application of the petitioner under the GST, the registration has been cancelled. In other words, the grounds mentioned under Rule 21 of the Act have not been tested by the respondent authorities, which empowers the cancellation of registration.
Further, it is not the case of the revenue that the petitioner has obtained the registration by committing any breach of the conditions mentioned under Section 29 (2) read with Rule 21 of the GST Act as well as the Rules.
Conclusion - The cancellation of registration cannot be upheld, due to the failure to meet the procedural and substantive requirements of the GST Act. The respondent authorities is directed to restore the petitioner's GST registration immediately upon presentation of the order.
Petition allowed.
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2025 (3) TMI 1313
Entitlement to Input tax credit (ITC) under the UPGST/CGST Act for transactions conducted with a seller whose registration was subsequently canceled - cancellation of the seller's registration with retrospective effect impacts the petitioner's entitlement to ITC for transactions conducted prior to the cancellation or not - HELD THAT:- The perusal of the contents of Section 16 of the GST Act, 2017 shows that the input tax credit can be claimed only on the fulfilment of conditions mentioned therein. It also clarifies that no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both - The contents of Section 74 of the GST Act, 2017 provides for determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized by reason of fraud or any wilful misstatement or suppression of fact - Perusal of the contents of Rule 36 of the GST Rules, 2017 provides that the required documents for claiming input tax credit should be made available and the same may be reflected in GSTR-3B.
From Sections 16 & 74 of the GST Act, 2017 as well as Rule 36 of the GST Rules, 2017, it is clear that the provisions as provided, certain benefit of input tax credit to the registered person should be provided on the fulfilment of conditions as well as documents required to be provided therein.
In the case in hand, the proceedings were initiated against the petitioner under Section 74 of the GST Act, 2017 as the registration of the seller dealer has been cancelled on subsequent date i.e. with effect from 29.01.2020, thus, the date of transaction was admittedly took place prior to it i.e. on 06.12.2018 - Further, the record shows that the GST authorities are empowered to cancel the registration from the date of inception of proceedings, but the authorities in their wisdom cancelled the registration of the seller on a subsequent date i.e. with effect from 29.01.2020.
Once the seller was registered at the time of the transaction in question, no adverse inference can be drawn against the petitioner. Further, the record shows that the registration of the selling dealer was cancelled retrospectively i.e. w.e.f. 29.01.2020 and not from its inception which goes to show that the transaction between petitioner and seller was registered and having valid registration in his favour - That under the GST regime, all details are available in the GST Portal and therefore, authorities ought to have been verified the same as to whether the filing of GSTR-1A and GSTR-3B, how much tax has been deposited by the seller, but the authorities have failed to do so.
Conclusion - Once the seller was registered at the time of the transaction in question, no adverse inference can be drawn against the petitioner. The denial of credit to petitioner cannot be sustained.
The matter is remanded to the authority concerned for deciding afresh by passing a reasoned and speaking order, after hearing all the stakeholder - petition allowed by way of remand.
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2025 (3) TMI 1312
Seeking grant of Regular bail - offence punishable under section 132(1) of the Central Goods and Service Tax Act (CGST), 2017 under Clause(a) or Clause (b) or Clause(c) or Clause (d) of the said section 132(5) - iron scrap and miscellaneous scrap have been transported by way of vehicle using fake Invoices - HELD THAT:- After reading of Section 69 of CGST Act, 2017 there must be reason to believe that a person has committed an offence and from perusal of Section 132 of the Act, it is clear that there must be reason to believe of tax evasion or condition as specified in section 132 for arresting of such person under the Act - On perusal of Section 132 of CGST Act, it is clear that the punishment for the alleged offence is up to five years.
Considering the facts and circumstances of the case, this Court is inclined to enlarge the petitioner on bail. The above named petitioner is directed to be released on bail subject to fulfilment of conditions imposed.
Bail application allowed.
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2025 (3) TMI 1311
Suspension of GST registration of the Petitioner - SCN alleged that the Petitioner does not conduct its business from the declared place of business - HELD THAT:- The Petitioner’s difficulty is that the Petitioner is unable to access the GST portal so as to enable the Petitioner to file a reply.
Let the GST portal access be given to the Petitioner for at least a period of 30 days to enable the Petitioner to file a reply to the impugned Show Cause Notice.
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2025 (3) TMI 1310
Challenge to order passed u/s 73 of UP/CGST Act, 2017 for the Tax Period July 2017 to march 2018 - HELD THAT:- In the present case it is clear from the record that though show cause notice was issued when the petitioner was having registration under GST Act, by the time the order was passed under Section 73, the petitioner was not having U.P. GST registration. Further, it is noted that the petitioner did not receive notice of hearing, therefore, he did not appear before the order impugned was passed.
In light of the same, the order should have been served upon the petitioner either by way of email or by way of registered post.
The impugned order is quashed and set aside - Petition disposed off.
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2025 (3) TMI 1309
Validity of simultaneous/dual/parallel proceedings in relation to the same year 2018-19 - HELD THAT:- As rightly contended by learned counsel for the petitioner, respondent No. 1-Assistant Commissioner and respondent No. 2-Deputy Commissioner have ventured to initiate simultaneous/dual/parallel proceedings in relation to the same year 2018-19 by putting forth the very same contentions against the petitioner, which is clearly impermissible in law and consequently, the impugned orders passed by respondent Nos. 1 and 2 deserves to be quashed by reserving liberty in favour of the respondent No. 2 – Deputy Commissioner to proceed further in accordance with law.
Matter is remitted back to respondent No. 2 for reconsideration afresh in accordance with law to the stage of replying to Show Cause Notice dated 19.12.2023 issued by respondent No. 2 to the petitioner - Petition allowed by way of remand.
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2025 (3) TMI 1308
Principles of natural justice - Service of SCN and Demand Orders - case of the Petitioner is that although the SCNs were uploaded on the portal, they were placed under the category of "Additional Notices and Orders," rendering them not directly visible - HELD THAT:- The Department concedes that the portal works differently from the Department’s side and the tax payer’s side. Insofar as the Petitioner is concerned, the Department was not being able to view them on the Notices tab. The Petitioner, in support of its case, has placed on record the print out from the portal which shows that the same was viewable only on Additional notice and orders Tab and hence, may have been missed by the Petitioner.
The impugned demand orders dated 23rd April, 2024 and 5th December, 2023 are accordingly set aside. In response to show cause notices dated 04th December, 2023 and 23th September, 2023, the Petitioner shall file its replies within thirty days. The hearing notices shall now not be merely uploaded on the portal but shall also be e-mailed to the Petitioner and upon the hearing notice being received, the Petitioner would appear before the Department and make its submissions. The show cause notices shall be adjudicated in accordance with law.
Petition disposed off.
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2025 (3) TMI 1307
Service of SCN for the assessment year 2019-2020 - stand of the Petitioner is that the Petitioner came to know of the impugned order dated 24th August, 2024 only in January, 2025 - HELD THAT:- Instead of permitting the matter to proceed in default, since the Petitioner has categorically stated that it did not receive the notice, the Petitioner is permitted to file an appeal within two weeks challenging the impugned order dated 24th August, 2024 in the unique facts and circumstances of this Court.
It is made clear that if the appeal is not filed within two weeks and there is any delay, then the condonation of delay shall be considered by the appropriate appellate authority in accordance with law.
Petition disposed off.
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2025 (3) TMI 1306
Invocation of extra ordinary jurisdiction of this Court under Article 226 of the Constitution - ex-parte order - neither alleged show cause notice was ever brought to the knowledge of the petitioner, nor service of the same was physically ever effected upon petitioner - principles of natural justice - HELD THAT:- The division bench in the Ola Fleet Technologies Pvt. Ltd. v. State of U.P. and Others [2024 (7) TMI 1543 - ALLAHABAD HIGH COURT] was of the view that party under liability of tax in an ex parte order needs at-least an opportunity to put up his defense by submitting papers which may have led assessing officer to uphold the claim for exemption from tax liability. The division bench accordingly, instead of keeping the matter pending disposed off the same with a direction that impugned order may be taken as notice to enable the petitioner to submit his reply and thereafter assessing officer may have to pass a fresh order.
Recently, in the matter of M/s Akriti Food Industry LLP v. State of U.p. and 3 Others, [2025 (1) TMI 772 - ALLAHABAD HIGH COURT], the Court has set aside the identical order.
It is directed that the order passed by the assessing officer dated 30.12.2023 shall be taken to be notice within the meaning of Section 73 of the GST Act, 2017 to enable the petitioner to file his objections and place its documents before assessing officer/ competent authority for its consideration - petition disposed off.
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2025 (3) TMI 1305
Challenge to penalty order passed u/s 129(3) of the Central Goods and Services Tax Act, 2017 - intent to evade (mens rea) present or not - original invoice was not present with the goods, but a photocopy of the same was present - weight of the truck that was weighed two days after detention was 25410 kilograms which was 270 kilograms more than the weight shown in the invoice - HELD THAT:- It is to be noted that in catena of judgements of this Court and the other High Courts have categorically held that the penalty to be levied under Section 129 (3) of the Act has to be based on intention to evade tax.
It is to be further noted that in the order passed under Section 129 (3) of the Act, the authorities have accepted the explanation of the petitioner with regard to the difference in weight and the only reason for which the penalty has been imposed is with regard to absence of original copy of the invoice.
Since the photocopy of the invoice alongwth e-way bill was present, therefore, we do not find any intention to evade tax as the invoice that was present alongwith the goods was matching with the e-way bill and there was no discrepancy between the two.
Since no mens rea to evade tax was there, we are of the view that the detention proceedings alongwith order under Section 129(3) of the Act are arbitrary and invalid in law. Accordingly, the impugned orders dated March 2, 2025 and March 6, 2025 are quashed and set aside - Petition disposed off.
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