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2024 (2) TMI 288 - CALCUTTA HIGH COURTLevy of penalty at the rate of 200% of the tax (GST) payable - Detention of escalator machine (JCB) - JCB machine was returning from work - violation of provision of Section 68 (1) of CGST Act - failure to produce any document in support of movement of the goods, i.e, the JCB machine - demand of penalty - HELD THAT:- After physical verification of the goods it was detected that the document relied upon by the driver was not signed. The details mentioned in the e-way bill did not match the delivery challan. The name and address of the person who released the goods did not match with the details of the person whose name is mentioned in the e-way bill. Because of the discrepancy in the documents, the respondent authorities concluded that the petitioner transported the goods, i.e., the machine in contravention of the provisions of law. In Bharti Airtel [2022 (10) TMI 998 - ALLAHABAD HIGH COURT] the Court opined that there is no provision under Section 129 for determination of tax due, which can be done only by taking recourse to provision of Section 73 and 74 of the Act, as the case may be. In Vardan Associates [2024 (2) TMI 189 - SUPREME COURT], decision relied upon by the respondent authorities, penalty was imposed as the assessee failed to comply with the requirement to generate fresh e-way bill while transporting the goods as the e-way bill in question expired in the midst of transportation. In such a situation the Court was of the opinion that a fresh e-way bill ought to have been generated so that the transportation of the consignment could be concluded. In the present case there was a valid e-way bill in support of the transportation. It is only because of non-production of the delivery challan that the penalty has been assessed and imposed. Though possession of all document in support of transportation is the fundamental requirement of law, but as it appears that, the petitioner did not have the intention to evade tax, accordingly, imposition of penalty at the rate of 200% of the tax payable appears to be highly disproportionate and not in accordance with the provisions of law. The impugned order passed by the adjudicating authority affirmed by the appellate authority is liable to be set aside and is accordingly set aside. The adjudicating authority is directed to revisit the issue in line with the discussions made herein above and pass a reasoned order - Petition allowed.
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