TMI Blog2018 (9) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... liberately committed any fault or disobeyed law intentionally or fraudulently, particularly when respondent-authorities themselves were not very clear. It also cannot be said that there is/was any intention of evasion of tax on the part of these petitioners. In the facts and circumstances, in all the writ petitions (except Writ Petition No. 87 of 2018), we are clearly of the view that seizure orders, show-cause notices issued under section 129 (3) and final orders, if any, are not sustainable in law. Jurisdiction of state authorities - Held that:- Officers of State are also competent for search, seizure and imposition of penalty in respect of violation of Central Enactments. Moreover, provisions relating to search and seizure are not for the purpose of imposition of a new liability but to regulate fiscal statutory provisions in order to avoid evasion of tax. Nothing has been placed on record to show that similar requirement of relevant documents was not provided by Central Government also in respect of inter-state transactions. There is also a principle that mere mention of a wrong provision will not make an order bad, if otherwise, power exists in the Statute. We are not sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been transported by said vehicle. Estimated value of goods constituting machines and parts, mentioned in the order is ₹ 9,85,000/-. Petitioner M/s. Godrej and Boyce Manufacturing Company Limited has transported six loading/unloading machines from its manufacturing unit situated at Thane, (State of Maharashtra) through two tax invoices dated 16.03.2018, to its Ghaziabad office, for the purpose of being used at Warehouse of M/s. Alstom Manufacturing India Pvt. Limited, Saharanpur as inter unit stock. Aforesaid goods were transported through M/s. Delhi Bombay Goods Carrier, Mumbai vide GR No. 41448 dated 16.03.2018 by vehicle no. DL-1LW-5527. Petitioner company downloaded Central Government E-Way Bill at its Thane unit for invoice no. B020101800000130 dated 16.03.2018. Due to bonafide omission, no Central E-Way Bill for remaining goods could be downloaded. Aforesaid E-Way Bill was for four items of machines mentioned therein. Remaining two items of machines were subjected to tax invoice no. D020101800000131 but no E-Way-Bill with respect to aforesaid invoice was downloaded. In transit goods were intercepted by respondent authorities on 20.03.2018 and finding that E-Way Bill i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14.03.2018 issued by Transporter to petitioner. Tax invoices issued in respect to aforesaid goods were numbered as STNAKW2018647, STNAKW2018648 and STNAKW2018649 dated 13.03.2018. All the requisite details of transportation of said goods were mentioned in receipts issued by Transporter. Requisite documents were with driver of vehicle. The vehicle was intercepted by Mobile Squad Team of Uttar Pradesh Commercial Tax Division, (hereinafter referred to as UPCTD ) and detained at Raparganj, District Sonbhadra by Assistant Commissioner Mobile Squad III. Interception memo dated 15.03.2018 at 10:30 A.M was issued and handed over to driver of vehicle. Memo of interception was issued on the ground that driver of vehicle was not carrying E-Way Bill 01, though in possession of original tax invoices issued by Consignor and LR receipts issued by Transporter. Thereafter physical verification was made by Assistant Commissioner who submitted report dated 16.03.2018 stating that goods worth more than ₹ 50,000/- being interstate supply were being transported but not accompanied by E-Way Bill-01. Subsequently, Assistant Commissioner passed a seizure order under section 129 (1) of U.P.G.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalty of same amount be not realized from petitioner. Seizure order dated 14.03.2018 and show cause notice of the same date have been challenged by this petitioner on the ground that goods were transported in interstate transaction governed by provisions of IGST Act and therefore, governed by Central Goods and Service Tax Act 2017 (hereinafter referred to as CGST Act ) and Rules framed thereunder. The mechanism of E-Way Bill under Central Goods and Service Tax Rules 2017 (hereinafter referred to as CGST Rules 2017 ) have not been implemented by Central Government. Hence, E-Way Bill alongwith goods were not carried by Transporter and that cannot be a ground for seizure or imposition of penalty. Hence, there is no violation of any provisions of IGST Act 2017/CGST Act 2017 or the Rules framed thereunder. Therefore, provisions of section 129 (1) of UPGST Act cannot be invoked against petitioner. UPGST Act 2017 cannot transgress upon field occupied by IGST Act 2017 and Notification issued under Rule 129 is beyond the power conferred by UPGST Act 2017. (IV) Writ Tax No. 46 2 of 2018 5. This writ petition has been filed under Article 226 of Constitution of India by M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny engaged in manufacture and sale of HDPE/P.P. bags and registered under G.S.T Act 2017. P.P. Compound is used by petitioner as raw material for manufacturing of bags and for said purpose placed an order of supply of P.P. compound to M/s. Kalpana Industries (India) Limited, situated at Village Post Chaturbhujkathi, Kandua, P.S. Sankrail, Howrah (State of West Bengal). The aforesaid supplier booked consignment for transport of raw material to petitioner by Transporter M/s. Swastik Cargo Movers. Goods were being transported by truck no. UP63T-3207. Driver of vehicle was carrying requisite documents i.e. tax invoices, bilty and Central E-Way Bill. Goods were intercepted and detained on 09.03.2018 at 4:00 A.M. at Chandauli on the ground that same were imported in the State of U.P. from out side U.P. without E-Way Bill-01. Seizure order was passed under section 129 (1) on 09.03.2018 and it is also mentioned that U.P. E-Way Bill was not accompanied and Central E-Way Bill dated 07.03.2018 was generated on trial basis, therefore, it was not legally acceptable. Respondent 4 also issued notice under section 129 (3) proposing imposition of tax of ₹ 1,07,460/- and penalty of sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 478 of 2018 9. This writ petition has been filed by M/s. Gaurang Products Pvt. Ltd., having its Unit at Industrial Area, Ghaziabad challenging, seizure order dated 19.03.2018 and show cause notice of the same date issued by Assistant Commissioner, State/Commercial Tax, Mobile Squad, Unit-12, Kanpur. Petitioner is engaged in manufacturing M.S. Tubes Pipes and duly registered with GST Department of U.P. having GSTIN No. 09AACCG0182L120. It has supplied 4300 Meters of M.S. Tubes and Pipes to U.P. Jal Nigam and same was to be delivered at Jal Nigam office at Allahabad. Petitioner prepared invoice no. 5267 dated 16.03.2018 in respect of 266.71 meters of M.S. Tubes Pipes after charging IGST. The goods were handed over to M/s. Pragati Logistic Pvt. Ltd., Transporter against GR dated 16.03.2018 and same were transported by truck no. UP13T-0693. E-Way Bill-02 was also downloaded by petitioner on 16.03.2018 at 7:01 PM and it was carried by driver of vehicle. On 19.03.2018 at 08:44 AM vehicle was intercepted at Kanpur by respondent 3, who found that validity period of E-Way Bill-02 had already expired. The goods were accordingly seized by him and seizure order was passed on 19.03.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also issued on the same date proposing levy of tax of ₹ 1,54,699/- and penalty of the same amount. (X) Writ Tax No. 87 of 2018 12. This writ petition has been filed by M/s. Proactive Plast Pvt. Ltd., Plots No. 274, 275, 280, 281, Ecotech-1 Extension, Kasna, Greater Noida, District Gautam Budh Nagar. He has filed this writ petition challenging seizure order dated 20.01.2018 and notice issued on same date under section 129 (1) and (3) of UPGST Act 2017. Petitioner company is engaged in manufacture of packing material and registered under UPGST Act 2017, having GST TIN No. 09AADCP5536C1ZJ. Petitioner placed purchase order of raw material i.e. 2,500 Kg of NUCREAL AE Resin and 7,500 Kg of SURLYN SR Resin to a Ex-U.P. Registered dealer i.e. M/s. Fibro Plast Corporation, Mumbai, Maharashtra. The supplier who has registered office at Mumbai and its godown at Bhiwandi, (Maharashtra) had issued proforma on invoice dated 15.01.2018, indicating all the details. Goods were handed over to Transporter for transporting the same from Bhiwandi (State of Maharashtra) to Greater Noida by truck no. HR55X4835. For the purpose of E-way Bill Form 01, petitioner also generated Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.3.18 7. 560/2018 Rimjhim Ispat Ltd. 28.2.18 6.3.18/7.3.18 7.3.18 654840/- 13.3.18 8. 478/2018 M/s Gaurang Products Pvt. Ltd. 16.3.18 19.3.18 19.3.18 247528/- --- 9. 464/2018 M/s Aditya Birla Fashion and Retail Ltd. Kanpur 11.3.18 12.3.18 14.3.18 ---- 461450/- (Approx value of seized goods) --- 10. 551/2018 M/s Navyug Airconditioning 23.3.18 24.3.18/25.3.18 25.3.18 154699/- --- 11. 87/18 Proactive Plast Pvt. Ltd. 15.1.18 19.1.18/20.1.18 20.1.18 1122300/- --- 14. Seizure orders passed by authorities concerned as also noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time period during which e-way-bill-02 shall remain valid and this prescription by Commissioner is ultra-vires and beyond the power conferred upon him as it is not contemplated either under the Act or the Rules or even Notification dated 21 July, 2017 issued by State Government. Prescription of time period of validity of e-way-bill-02 could have been done only by the State Government and not the Commissioner and this power exercised by Commissioner vide circular dated 09th August, 2017 is wholly ultra-vires. (ix) Rule 138 confers no power upon State Government to subdelegate power to Commissioner. (x) Commissioner in its circular dated 09th August 2017 has prescribed time period of validity for e-way-bill-01 for Inter- State movement and also for e-way-bill-02 for Intra-State movement. However, for the same distance, time period for eway- bill-02 is only 48 hours while for e-way-bill-01 it is ten days. This distinction/different period of time is clearly discriminatory and arbitrary having no rationale and nexus with the object sought to be achieved. In any case in the substituted Rule 138 made effective from 01.02.2018, time period specified for validity of e-way-bill- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax/Sales Tax, Entertainment Tax, (other than the tax levied by the local bodies), Central Sales Tax levied by Centre and collected by States), Octroi and Entry-Tax Purchase Tax, Luxury Tax, Taxes on lottery, betting and gambling and State Cesses and surcharges in so far as they relate to supply of goods and services. Aforesaid Constitutional Amendment inserted Articles 246-A and 269-A which read as under. 246-A . Special provision with respect to goods and services tax ,-(1) Notwithstanding anything contained in Articles 246 and 254, Parliament , and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State . (2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of Inter-state trade or commerce. Explanation.- The provisions of this article, shall, in respect of goods and services tax referred to in clause (5) of Article- 279-A take effect from the date recommended by the Goods and Services Tax Council. 269-A . Levy and collection of goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different provisions of the said Act. Provisions of aforesaid Amendment have been made effective with effect from 16th September, 2016. 21. Parliament thereafter enacted certain statutes in respect of G.S.T and in the present cases, we are concerned with C.G.S.T Act 2017 and I.G.S.T Act 2017. 22. C.G.S.T Act 2017 makes provisions to levy tax on all Inter State supplies of goods or services or both, except supply of alcoholic liquor for human consumption, at a rate to be notified not exceeding 20% as recommended by Goods and Services Tax Council (hereinafter referred to as G.S.T.C ); to broad base input tax credit by making it available in respect of taxes paid on supply of any goods and services or both; to impose obligation on electronic commerce operators to collect tax at source at such rate not exceeding one percent or not any net value of taxable supplies; to provide sale-assessment of taxes payable by registered person; to provide for conduct of audit of registered persons in order to verify compliance with the provisions of Act; to provide for recovery of arrears of tax using various modes including detaining and sale of goods, movable and immovable property of defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal transactions in relation to import of services made on or after appointed day. 24. Sections 1, 2, 3, 14, 20 and 22 of IGST Act 2017 were enforced w.e.f 22.06.2017. Sections 4 to 13, 16 to 19, 21, and 23 to 25 were enforced w.e.f 01.07.2017. For the purpose of execution of provisions of CGST Act 2017, Sections 3 to 5 make provisions for appointment and power of Officers and Section 6 makes provision, authorizing officers of State tax or Union Territory tax as proper officers in certain circumstances. Above provisions are reproduced as under:- 3. Officers under this Act .- The Government shall, by Notification, appoint the following classes of officers for the purposes of this Act, namely:- (a) Principal Chief Commissioners of Central Tax or Principal Directors General of Central Tax, (b) Chief Commissioners of Central Tax or Directors General of Central Tax, (c) Principal Commissioners of Central Tax or Principal Additional Directors General of Central Tax, (d) Commissioners of Central Tax or Additional Directors General of Central Tax, (e) Additional Commissioners of Central Tax or Additional Directors of Central Tax, (f) Joint Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue an order under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as authorised by the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, under intimation to the jurisdictional officer of State tax or Union territory tax; (b) where a proper officer under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act has initiated any proceedings on a subject matter, no proceedings shall be initiated by the proper officer under this Act on the same subject matter. (3) Any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under this Act shall not lie before an officer appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act. 25. We may notice that Sections 3, 4 and 5 of CGST Act 2017 were enforced w.e.f 22.06.2017 and section 6 was enforced w.e.f 01.07.2017. 26. Similarly in IGST Act 2017 there are two provisions i.e. Sections 3 and 4, and same read as under:- 3. Appointment of officers .- The Board may appoint such central ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch rate not exceeding two per cent, as may be notified on the recommendations of the Council, of the net value of taxable supplies: PROVIDED ALSO that for the purposes of this Act, the value of a supply shall include any taxes, duties, cesses, fees and charges levied under any law for the time being in force other than this Act, and the Goods and Services Tax (Compensation to States) Act, if charged separately by the supplier: PROVIDED ALSO that in cases where the penalty is leviable under the Central Goods and Services Tax Act and the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, the penalty leviable under this Act shall be the sum total of the said penalties. 28. As we have already said section 3 of IGST Act 2017 was made effective from by 22.06.2017 and section 4 was made effective from 01.07.2017. Section 164 of CGST Act 2017 confers Rule framing power upon Central Government and pursuant thereto CGST Rules 2017 were made and enforced w.e.f 22nd June 2017. Similarly section 22 of IGST Act 2017 confers power upon Central Government to makes Rules and pursuant thereto Integrated Goods and Service Rules 2017 (hereinafter referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty; (c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: PROVIDED that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. (2) The provisions of sub-section (6) of Section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances. (3) The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c). (4) No tax, interest or penalty shall be determined under subsection (3) without giving the person concerned an opportunity of being heard. (5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded. (6)Where the person transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax and penalty under clause (a) or clause (b) or clause (c). (4) No tax, interest or penalty shall be determined under subsection (3) without giving the person concerned an opportunity of being heard. (5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub- section (3) shall be deemed to be concluded. (6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within seven days of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of Section 130: Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer. 31. In CGST Act 2017 as well as in UPGST Act 2017, Section 68 provides for Inspections of goods in movement and the provisions are pari-materia. For conveyance, we are reproducing the same below in the form of a comparative chart, and as already said both these provisions came into fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n movement or in transit storage. 138. E-way Rule- Till such time as an E-way-Bill system is developed and approved by the Council, the Government may, by Notification, specify the documents that the person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage. 33. U.P. Government in purported exercise of powers under Rule 138 of UPGST Rules 2017, issued a Notification no. KA.NI-1014/XI- 9(52)/17-UPGST-Rules-2017-Order-(31)-2017-Lucknow dated 21st July 2017 specifying documents required be carried by a person in charge of conveyance carrying any consignment of goods while in movement or in transit, storage in U.P. and it reads as under:- Uttar Pradesh Shashan Sansthagat Vitta, Kar Evam Nibandhan Anubhag -2 Notification No.-K.A.NI.-1014/XI-9(52)/17-U.P.GST Rules-2017- Order-(31)-2017 Lucknow : 21 July 2017 In exercise of the powers under Rule 138 of the Uttar Pradesh Goods and Services Tax Rules, 2017 framed under the Uttar Pradesh Goods and Services Tax Act, 2017 (U.P. Act No. 1 of 2017) the Governor is pleased to specify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation dated 21.07.2017, Commissioner issued Circular No. Sa.Da.GST/Maal Parivahan/2017- 18/2017/Vanijya Kar dated 22.07.2017 laying down procedure for downloading E-way-bills. Commissioner also notified 26.07.2017 from which date Notification dated 21.07.2017 would become effective. Subsequently, by another Circular No. Sa.Da.GST/Maal Parivahan/2017-18/1028/Vanijya Kar dated 27.07.2017, date for giving enforcement to Notification dated 21.07.2017 was deferred and instead of 26.07.2017 it was declared to be effective from 16.08.2017. Then another Circular No. GST/Maal Parivahan/2017-18/1102/Vanijya Kar dated 09.08.2017 was issued amending procedure for downloading relevant forms and it was also declared that Government Notification dated 21.07.2017 shall be effective from 16.08.2017. 35. Further in exercise of powers under Section 164 of UPGST Act 2017, U.P. Goods and Services Tax (Fourth Amendment) Rules 2017 (hereinafter referred to as 'UPGST (Fourth Amendment) Rules 2017') were published vide Notification no. KA.NI-2-1359/XI-9(42)/17- UPGST-Rules-2017-Order-(45)-2017-Lucknow dated 20th September 2017 and Rule 138 was substituted by following Sub Rule 1 to 14:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vement shall be said to be caused by such recipient if the recipient is known at the time of commencement of movement of goods. Explanation 2 -The information in Part A of FORM GST EWB- 01 shall be furnished by the consignor or the recipient of the supply as consignee where the goods are transported by railways or by air or by vessel. (4) Upon generation of the e-way bill on the common portal, a unique e-way bill number (EBN) shall be made available to the supplier, the recipient and the transporter on the common portal. (5) Any transporter transferring goods from one conveyance to another in the course of transit shall, before such transfer and further movement of goods, update thedetails of conveyance in the e-wav bill on the common portal in FORM GST EWB-01: Provided that where the goods are transported for a distance of less than ten kilometers within the State or Union territory from the place of business of the transporter finally to the place of business of the consignee, the details of conveyance may not be updated in the e-way bill. (6) After e-way bill has been generated in accordance with the provisions of sub-rule (1), where multiple co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Commissioner may, by Notification, extend the validity period of e-way bill for certain categories of goods as may be specified therein: Provided further that where, under circumstances of an exceptional nature, the goods cannot be transported within the validity period of e-way bill, the transporter may generate another e-way bill after updating the details in Part B of FORM GST EWB-01 Explanation.-For the purposes of this rule, the relevant date shall mean the date on which the e-way bill has been generated and the period of validity shall be counted from the time at which the e-way bill has been generated and each day shall be counted as twenty-four hours. (11) The details of e-way bill generated under sub-rule (1) shall be made available to the recipient, if registered, on the common portal, who shall communicate his acceptance or rejection of the consignment covered by the e-way bill. (12) Where the recipient referred to in sub-rule (11) does not communicate his acceptance or rejection within seventy two hours of the details being made available to him on the common portal, it shall be deemed that he has accepted the said details. (13) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2017 (U.P. Act no. 1 of 2017) read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act no. 1 of 1904), the Governor hereby appoints the 1st day of February, 2018 as the date from which the provisions of serial number 10 and 11 of Notification No. KA.NI-2- 1359/XI-9(42)/17-U.P. GST Rules-2017-Order-(45)-2017 dated 20-10-2017, shall come into force. 38. Perhaps this mistake was noticed by Government subsequently and, therefore, it issued another Notification no. KA.NI-177/XI-9- (42)/17-UP Act-1-2017-Order-(109)-2018-Lucknow- dated 6th February 2018, whereby Notification no. KA.NI-2-138/XI-9(42)/17-UP-Act-1- 2017-Order-(101)-2018-Lucknow dated 30th January 2018 was rescinded. Notification dated 6th February 2018 reads as under: Notification KA.NI.177/XI-9(42)/17-U.P. ACT-1-2017-ORDER (109)-2018, DATED 6-2-2018 In exercise of the powers conferred by section 164 of the Uttar Pradesh Goods and Services tax Act, 2017 (U.P. Act no 1 of 2017) read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act no. 1 of 1904), the Governor hereby rescinds, except as respects things done or omitted to be done before such rescis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, State or Union territory tax, integrated tax and cess charged, if any, in the document. (2) Where the goods are transported by the registered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or by railways or by air or by vessel, the said person or the recipient may generate the eway bill in FORM GST EWB-01 electronically on the common portal after furnishing information in Part B of FORM GST EWB-01 : Provided that where the goods are transported by railways or by air or vessel, the e-way bill shall be generated by the registered person, being the supplier or the recipient, who shall furnish, on the common portal, the- (a) information in Part B of FORM GST EWB-01; and (b) the serial number and date of the Railway Receipt or the Air Consignment Note or Bill of lading, as the case may be. (3) Where the e-way bill is not generated under sub-rule (2) and the goods are handed over to a transporter for transportation by road, the registered person shall furnish the information relating to the transporter on the common portal and the e-way bill shall be generated by the transporter on the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5A) The consignor or the recipient, who has furnished the information in Part-A of FORM GST EWB-01, or the transporter, may assign the e-way bill number to another registered or enrolled transporter for updating the information in Part-B of FORM GST EWB-01 for further movement of consignment: Provided that once the details of the conveyance have been updated by the transporter in Part B of FORM GST EWB-01, the consignor or recipient, as the case may be, who has furnished the information in Part-A of FORM GST EWB-01 shall not be allowed to assign the e-way bill number to another transporter. (6) After e-way bill has been generated in accordance with the provisions of sub-rule (1), where multiple consignments are intended to be transported in one conveyance, the transporter may indicate the serial number of e-way bills generated in respect of each such consignment electronically on the common portal and a consolidated e-way bill in FORM GST EWB-02 may be generated by him on the said common portal prior to the movement of goods. (7) Where the consignor or the consignee has not generated FORM GST EWB-01 in accordance with the provisions of subrule ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided further that where, under circumstances of an exceptional nature, the goods cannot be transported within the validity period of the e-way bill, the transporter may generate another e-way bill after updating the details in Part B of FORM GST EWB-01. Explanation.-For the purposes of this rule, the relevant date shall mean the date on which the e-way bill has been generated and the period of validity shall be counted from the time at which the e-way bill has been generated and each day shall be counted as twenty-four hours. (11) The details of e-way bill generated under sub-rule (1) shall be made available to the - (a) supplier, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the recipient or the transporter; or (b) recipient, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the supplier or the transporter, on the common portal, and the supplier or the recipient, as the case may be, shall communicate his acceptance or rejection of the consignment covered by the e-way bill. (12) Where the person to whom the information specified in subrule (11) has been made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y from an unregistered person, shall, before commencement of such movement, furnish information relating to the said goods as specified in Part A of FORM GST EWB-01, electronically, on the common portal along with such other information as may be required on the common portal and a unique number will be generated on the said portal: Provided that the transporter, on an authorization received from the registered person, may furnish information in Part A of FORM GST EWB-01, electronically, on the common portal along with such other information as may be required on the common portal and a unique number will be generated on the said portal: Provided further that where the goods to be transported are supplied through an e-commerce operator or a courier agency, on an authorization received from the consignor, the information in Part A of FORM GST EWB-01 may be furnished by such e-commerce operator or courier agency and a unique number will be generated on the said portal: Provided also that where goods are sent by a principal located in one State or Union territory to a job worker located in any other State or Union territory, the e-way bill shall be gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be generated by the transporter on the said portal on the basis of the information furnished by the registered person in Part A of FORM GST EWB-01: Provided that the registered person or, the transporter may, at his option, generate and carry the e-way bill even if the value of the consignment is less than fifty thousand rupees: Provided further that where the movement is caused by an unregistered person either in his own conveyance or a hired one or through a transporter, he or the transporter may, at their option, generate the e-way bill in FORM GST EWB-01 on the common portal in the manner specified in this rule: Provided also that where the goods are transported for a distance of upto fifty kilometers within the State or Union Territory from the place of business of the consignor to the place of business of the transporter for further transportation, the supplier or the recipient, or as the case may be, the transporter may not furnish the details of conveyance in Part B of FORM GST EWB-01. Explanation 1- For the purposes of this sub-rule, where the goods are supplied by an unregistered supplier to a recipient who is registered, the movement shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M GST EWB-01 and the aggregate of the consignment value of goods carried in the conveyance is more than fifty thousand rupees, the transporter, except in case of transportation of goods by railways, air and vessel, shall, in respect of inter-State supply, generate the e-way bill in FORM GST EWB-01 on the basis of invoice or bill of supply or delivery challan, as the case may be, and may also generate a consolidated e-way bill in FORM GST EWB-02 on the common portal prior to the movement of goods: Provided that where the goods to be transported are supplied through an e-commerce operator or a courier agency, the information in Part A of FORM GST EWB-01 may be furnished by such e-commerce operator or courier agency. (8) The information furnished in Part A of FORM GST EWB-01 shall be made available to the registered supplier on the common portal who may utilize the same for furnishing the details in FORM GSTR-1 : Provided that when the information has been furnished by an unregistered supplier or an unregistered recipient in FORM GST EWB-01, he shall be informed electronically, if the mobile number or the e-mail is available. (9) Where an e-way bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the period expiring at midnight of the day immediately following the date of generation of e-way bill. Explanation 2.-For the purposes of this rule, the expression Over Dimensional Cargo shall mean a cargo carried as a single indivisible unit and which exceeds the dimensional limits prescribed in rule 93 of the Central Motor Vehicle Rules, 1989, made under the Motor Vehicles Act, 1988 (59 of 1988). (11) The details of the e-way bill generated under this rule shall be made available to the- (a) supplier, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the recipient or the transporter; or (b) recipient, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the supplier or the transporter, on the common portal, and the supplier or the recipient, as the case may be, shall communicate his acceptance or rejection of the consignment covered by the e-way bill. (12) Where the person to whom the information specified in subrule (11) has been made available does not communicate his acceptance or rejection within seventy two hours of the details being made available to him on the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vement of goods caused by defence formation under Ministry of Defence as a consignor or consignee; (l) where the consignor of goods is the Central Government, Government of any State or a local authority for transport of goods by rail; (m) where empty cargo containers are being transported; and (n) where the goods are being transported upto a distance of twenty kilometers from the place of the business of the consignor to a weighbridge for weighment or from the weighbridge back to the place of the business of the said consignor subject to the condition that the movement of goods is accompanied by a delivery challan issued in accordance with rule 55. Explanation.- The facility of generation, cancellation, updation and assignment of e-way bill shall be made available through SMS to the supplier, recipient and the transporter, as the case may be. 42. Rule 1 (2) of 14th Amendment Rules, 2018 provides that the provisions in said Notification shall come into force on such date as State Government may by Notification in the gazette, appoint. In furtherance thereof, State Government has issued Notification no. KA.NI-2-498/XI-9(42)/17-UP-Act-1-2017-Order-(121)-2018- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2017 but it was not made effective from that date and, on the contrary, it was to be declared by Commissioner State Tax/Commercial Tax. In furtherance of State Government's Notification No. KA-NI-1014/XI- 9(52)/17-U.P.GST Rules-2107-order(31)-2017 dated 21.07.2017, Commissioner issued Circular No. Sa.Da.GST/Maal Parivahan/2017- 18/2017/Vanijya Kar dated 22.07.2017 laying down procedure for downloading of E-way bill 01, E-way-bill 02, E-way-bill 03 and T.D.F. 01 and made Government Notification effective from 26.07.2017. On representation of Traders and Transporters Association Commissioner issued another Circular No. Sa.Da.GST/Maal Parivahan/2017- 18/1028/Vanijya Kar dated 27.07.2017, modifying date of making Government Notification dated 21.07.2017 effective and new date was 16.08.2017, the reason being that traders found a lot of difficulties in downloading relevant Forms. Taking note of difficulties Commissioner also issued Circular No. Sa. Da. GST/Maal Parivahan/2017- 18/1102/Vanijya Kar dated 09.08.2017 amending procedure for downloading relevant Forms and it was declared that Government Notification dated 21.07.2017 shall be effective from 16.08.2017. 45. Then comes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Forms consistent with Rule 138 made effective from 01.02.2018 were made available on the portal. 48. We also find that under Rule 138 (10) period of validity of e-way bill was clearly different than what was mentioned in Commissioner's Circulars dated 09.08.2017. Thus, Rule 138 as was brought in by Notification dated 31.01.2018 w.e.f. 01.02.2018 was operative during the period of transactions with which we are concerned in the present set of writ petitions, except writ petition no. 87 of 2018 which is governed by Rule 138, as initially enacted read with Government's Notification dated 21.07.2017 and Commissioner's Circulars dated 22.07.2017, 27.07.2017 and 09.08.2017 since the invoice herein is dated 15.01.2018 and seizure was made on 20.01.2018. 49. Seizure orders, show cause notices and final orders (wherever passed) in writ petitions under consideration, (except Writ Petition No. 87 of 2018) we find that concerned authority, in all above documents, has referred to Government's Notification dated 21.07.2017 and Commissioner's Circular dated 09.08.2017, though the Forms were already changed, procedure was also made different vide Rule 138 brought in by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, never became operative. The first amendment by substitution of Rule 138 is by way of U.P. GST (Thirteenth Amendment) Rules 2018 vide Notification dated 31.01.2018 which came into force on 01.02.2018 and it continued upto 31.03.2018. Thereafter, it stands substituted by another Rule 138 vide U.P. GST (Fourteenth Amendment) Rules 2018, Notification dated 26.03.2018, made effective from 01.04.2018. Probably, the above pace of change derailed respondent authorities also in their understanding as to which provision has to be followed and implemented and what has to be observed/applied/obeyed by Petitioners and their Transporters. That is how impugned orders have been passed under a clear misconception of non-downloading of e-way bill 01 or 02, as the case may be, though under Rule 138, which had come into force on 01.02.2018, the Form(s) required to be downloaded by Dealers or Transporters are different. 53. In these peculiar facts and circumstances of the case, in our view, neither it can be said that Petitioners have deliberately committed any fault or disobeyed law intentionally or fraudulently, particularly when respondent-authorities themselves were not very clear. It als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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