TMI Blog2019 (5) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2019 at the first instance, for commencement of proceedings for adjudication. The question of whether the movement of the consignments sans valid E-way bills constitutes a substantive error or a mere technical breach shall be considered by the Assessing Officer, having regard to the provisions of Sections 122, 125 and 126 of the Act as well all relevant Instructions and Circulars issued by the Board. Let the officer also bear in mind that E-way bills, though stale, had, in fact, accompanied the consignments. The assessees/petitioners have offered explanations in regard to the circumstances that caused the documents to expire and such explanations will be taken into consideration by the officer in determining the quantum of penalty to be levied. Consignments in the case of Caterpillar - HELD THAT:- Their immediate release is ordered, the interests of the Department must remain protected. The penalty is quantified, for the moment, and solely for the purposes of this order, 100% of the tax. The goods shall be released forthwith, upon condition that Caterpillar furnish a Bank Guarantee(s) for a sum of ₹ 3,84,30,193/- in favour of the detaining Authority prior to such rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, W.P.No.5128 of 2019 filed by William Henry, a Transporter, and referred to, as such. 4. Heard Mr.R.Raghavan Ramabadran, learned counsel appearing for Caterpillar, Mr.B.Raveendran, learned counsel appearing for the Transporter and Mr.Mohamad Shafiq, learned Central Government Standing Counsel, appearing for the respondents, in all the writ petitions. 5. Caterpillar has, admittedly, transported consignments of Off Highway trucks that are zero rated in terms of Section 18 of the IGST, without valid and necessary E-way bills accompanying the same. The case of the petitioner is that along with the Tax Invoice, an E-way bill dated 08.02.2019 was originally generated. However, the consignments required special police permission for their movement between the hours of 11 p m and 5 a m. Though sought, the police permission was delayed, by which time the E-way bill, the validity of which is four (4) hours only, had expired. It is explained that the police permission had not been received in time on account of the intervening weekend. The permission was received on 11.02.2019 and the goods moved thereafter, admittedly, unaccompanied by valid E-way bills. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Validity Period (1) (2) (3) 1. Up to 100 Km. One day in cases other than Over dimensional cargo. 2. For every 100 Km or part thereof thereafter One additional day in cases other than Over dimensional cargo. 3. Up to 20 Km One day in case of Over dimensional cargo. 4. For every 20 Km or part thereof thereafter One additional day in case of Over dimensional cargo. Provided that the Commissioner may, on the recommendations of the Council, by notification, extend the validity period of an e-way bill for certain categories of goods as may be specified therein: Provided further that where, under circumstances of an exceptional nature, including trans-shipment, the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishing 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. 11. Section 129 (1) provides for the release of the seized goods in three situations: (i) where the violating party comes forward, upon detection of the violation, upon payment of 100% of the tax; (ii) where the violating party does not come forward to pay the tax and penalty, upon payment of 100% tax and 50% of the penalty; (iii) upon furnishing of security as prescribed in the 1st and 2nd situations as aforesaid. According to Caterpillar, the goods transported are zero rated and hence there is no liability to tax despite which taxes have been remitted, as a result that it is entitled to a refund. This is a matter of adjudication and I hence refrain from delving deeper upon this aspect. Suffice it to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not exceed the market value of the goods confiscated, less the tax chargeable thereon: Provided further that the aggregate of such fine and penalty leviable shall not be less than the amount of penalty leviable under sub-section (1) of section 129: Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. (3) Where any fine in lieu of confiscation of goods or conveyance is imposed under sub-section (2), the owner of such goods or conveyance or the person referred to in sub-section (1), shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance. (4) No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard. (5) Where any goods or conveyance are confiscated under this Act, the title of such goods or conveyance shall thereupon vest in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may extend to twenty-five thousand rupees. 17. The general disciplines also provides for imposition of tax for minor breaches of regulations or procedural requirements, defined in the Explanation to the provision. Section 126 of the Act is extracted below:- General disciplines related to penalty. 126. (1) No officer under this Act shall impose any penalty for minor breaches of tax regulations or procedural requirements and in particular, any omission or mistake in documentation which is easily rectifiable and made without fraudulent intent or gross negligence. Explanation. For the purpose of this sub-section, (a) a breach shall be considered a minor breach if the amount of tax involved is less than five thousand rupees; (b) an omission or mistake in documentation shall be considered to be easily rectifiable if the same is an error apparent on the face of record. (2) The penalty imposed under this Act shall depend on the facts and circumstances of each case and shall be commensurate with the degree and severity of the breach. (3) No penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritory to or from the place of business of the transporter to the place of business of the consignor or the consignee, as the case may be. 4. Whereas, section 129 of the CGST Act provides for detention and seizure of goods and conveyances and their release on the payment of requisite tax and penalty in cases where such goods are transported in contravention of the provisions of the CGST Act or the rules made thereunder. It has been informed that proceedings under section 129 of the CGST Act are being initiated for every mistake in the documents mentioned in para 3 above. It is clarified that in case a consignment of goods is accompanied by an invoice or any other specified document and not an e-way bill, proceedings under section 129 of the CGST Act may be initiated. 5. Further, in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, proceedings under section 129 of the CGST Act may not be initiated, inter alia, in the following situations: a) Spelling mistakes in the name of the consignor or the consignee but the GSTIN, wherever applicable, is correct; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to the provisions of Sections 122, 125 and 126 of the Act as well all relevant Instructions and Circulars issued by the Board, including the Circular extracted above. Let the officer also bear in mind that E-way bills, though stale, had, in fact, accompanied the consignments. The assessees/petitioners have offered explanations in regard to the circumstances that caused the documents to expire and such explanations will be taken into consideration by the officer in determining the quantum of penalty to be levied. 21. As far as the consignments in the case of Caterpillar (W.P.Nos.5075, 5076, 5078, 5081, 5185 and 5189 of 2019) are concerned, while I am inclined to order their immediate release, the interests of the Department must remain protected. The penalty is quantified, for the moment, and solely for the purposes of this order, 100% of the tax. The goods shall be released forthwith, upon condition that Caterpillar furnish a Bank Guarantee(s) for a sum of ₹ 3,84,30,193/- in favour of the detaining Authority prior to such release. Proceedings for adjudication shall be completed within a period of six weeks from the date of initial hearing, being 06.03.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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