The Hon’ble Calcutta High Court in ASSISTANT COMMISSIONER, STATE TAX, DURGAPORE RANGE, GOVERNMENT OF WEST BENGAL. VERSUS ASHOK KUMAR SUREKA, PROPRIETOR OF SUBHAM STEEL [2022 (5) TMI 1075 - CALCUTTA HIGH COURT] affirmed the order passed by the Single Bench allowing the assessee to get the refund of tax and penalty paid under protest, for detention of vehicle due to expiry of the e-way bill. Held that, the Revenue Department could not have intercepted or detained the vehicle in the absence of a second e-way bill as the first e-way bill was valid during the interception period.
Ashok Kumar Sureka (“the Respondent”), is the proprietor of Shubham Steel, engaged in the wholesale of metals (“the Goods”).
This appeal has been filed by Revenue Department (“the Appellant”) against the order of the dated March 1, 2022 passed by the Hon’ble Calcutta High Court in ASHOK KUMAR SUREKA VERSUS ASSISTANT COMMISSIONER, STATE TAX, DURGAPUR RANGE, GOVERNMENT OF WEST BENGAL [2022 (3) TMI 445 - CALCUTTA HIGH COURT], wherein, the Court set aside the order of the Commissioner (Appeals) confirming the Order-in-Original (“OIO”) for detention of the goods, on the grounds of the expiry of the e-way bill and held that the Respondent will be entitled to get the refund of penalty and tax paid under protest subject to compliance of all legal formalities.
The Respondent contended that one of the e-way bill which was raised on September 7, 2019 was valid upto September 9, 2019. Further, another e-way bill expired at midnight on September 8, 2019 since the distance was only 9Km, the e-way bill was valid only for one day. However, the Goods were transported on September 9, 2019 and the delay of few hours was not deliberate and wilful, but due to break down of the vehicle.
The Appellant contended that the Respondent never stated anything about the vehicle being broken down or that non-extension of the validity of the e-way bill was not deliberate and willful. Further, the Court ought not to have allowed the Respondent to get the refund of the tax and penalty paid, by accepting the said argument and granting the relief.
Whether the case warranted detention of the vehicle/goods and collection of tax and penalty?
The Hon’ble Calcutta High Court in ASSISTANT COMMISSIONER, STATE TAX, DURGAPORE RANGE, GOVERNMENT OF WEST BENGAL. VERSUS ASHOK KUMAR SUREKA, PROPRIETOR OF SUBHAM STEEL [2022 (5) TMI 1075 - CALCUTTA HIGH COURT] held as under:
- Stated that, the bona fides of the Respondent has to be tested on the documents such as tax invoice and e-way bill raised.
- Further noted that, there is no dispute w.r.t. the quantity and description of the Goods and the vehicle number in both the e-way bills is for the same vehicle.
- Observed that the first e-way bill dated September 7, 2019 was valid up to September 9, 2019. Therefore, in the absence of the second e-way bill, the Appellant could not have intercepted or detained the vehicle.
- Noted the, there was no deliberate and wilful attempt on the part of the Respondent to evade payment of tax. Thus relief granted by the Court earlier is fully justified.
- Held that, the Appellant could not have intercepted or detained the vehicle, in absence of second e-way bill, as another e-way bill was valid during the interception period.
- Directed the Appellant to process the application for refund filed by the Respondent.
(Author can be reached at email@example.com)