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TMI Blog2019 (5) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... V(E). 2. Though all writ petitions were directed to be listed today, only W.P.Nos.5075, 5076, 5128, 5185 and 5189 of 2019 were listed and W.P.Nos.5078 and 5081 were omitted. Hence, at request of the learned counsel appearing for both sides to the effect that all the writ petitions dealt with identical issues, a special list was directed to be issued listing all the matters. It is hence that all the writ petitions have been listed together and are taken up for hearing. 3. The writ petitions are segregated into two sets, one, W.P.Nos.5075, 5076, 5078, 5081, 5185 and 5189 of 2019 filed by Caterpillar India Private Limited (referred to henceforth as 'Caterpillar') and the other, 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 neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to renewal/cancellation of E-way bill are provided under Rule 138 (10) of the Central Goods and Services Tax Rules, 2017, reading as follows:- 'R. 138 (10) An e-way bill or a consolidated e-way bill generated under this rule shall be valid for the period as mentioned in Column (3) of the Table below from the relevant date, for the distance, within the country, the goods have to be transported, as mentioned in column (2) of the said Table:- Sl.No. Distance 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 goods cannot be transported withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 state, as a matter of fact, that, in both cases, taxes have admittedly been remitted, albeit under protest. What remains is the penalty. Section 129 (1) (c) of the Act provides for furnishing of security equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Government. (6) The proper officer adjudging confiscation shall take and hold possession of the things confiscated and every officer of Police, on the requisition of such proper officer, shall assist him in taking and holding such possession. (7) The proper officer may, after satisfying himself that the confiscated goods or conveyance are not required in any other proceedings under this Act and after giving reasonable time not exceeding three months to pay fine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation.--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 penalty shall be imposed on any person without giving him an opportunity of being heard. (4) The officer under this Act shall while imposing penalty in an order for a breach of any law, regulation or procedural requirement, specify the nature of the breach and the applicable law, regulation or procedure under which the amount of penalty for the breach has been specified. (5) When a person voluntarily discloses to an officer under this Act the circumstances of a breach of the tax law, regulation or procedural requirement prior to the discovery of the breach by the officer under this Act, the proper officer may consider this fact as a mitigating factor when quantifying a penalty for that person. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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; b) Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill; c) Error in the address of the consignee to the extent that the locality and other details of the consignee are correct; d) Error in one or two digits of the document number mentioned in the e-way bill; e) Error in 4 or 6 digit level of HSN where the first 2 digits of HSN are correct and the rate of tax mentioned is correct; f) Error in one or two digits/characters of the vehicle number. 6. In case of the above situations, penalty to the tune of Rs. 500/- each under section 125 of the CGST Act and the respective State GST Act should be imposed (Rs. 1000/- under the IGST Act) in FORM GST DRC-07 for every cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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