TMI Blog2019 (12) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of section 20(xv) thereof, it is this rule which is applicable to matters pertaining to I.G.S.T. Act 2017. Neither the State of U.P. nor the Government of India has brought on record any such notification which may have been issued prescribing the relevant documents to be carried in the course of such movement as is referred in section 68 of the C.G.S.T. Act 2017 and Rule 138 of the C.G.S.T. Rules 2017. E-way bill system has been prescribed only recently by a notification of the Government of India dated 7th March 2018 whereby Rule 138 of the C.G.S.T. Rules 2017 has been amended and other Rules have been incorporated in this regard. These amendments are to come into force from a date to be specified by the Central Government. The fact of the matter is that on the date of incident i.e. 17.12.2017 neither there was any E-way Bill System nor any notification by the Central Government under Rule 138 of the C.G.S.T. Rules 2017 requiring the carrying of a T.D.F. Form or any other such document in the course of inter-State supply/movement of goods, as such, the very basis for passing the impugned orders and taking action against the petitioner as impugned herein is apparentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x of ₹ 1,32,000.00 and some odd amount and penalty on the said amount. Reply was submitted to the penalty notice which was not accepted and a penalty of ₹ 1,32,500.00 was imposed vide order dated 20-12- 2017. Against the said order an appeal was filed which was rejected. Learned counsel for the petitioner has relied upon a Division Bench judgment of this court dated 13.4.2018 rendered in Writ Petition No.5536 MB of 2018 wherein considering a similar issue it has been held that on the relevant date i.e. 4 Dec. 2017 when the vehicle in question was intercepted, the 'Government' referred in Rule 138 of the C.G.S.T. Rules 2017, which was the Central Government, had not developed and approved any e-way bill system nor any other arrangement had been made by the G.S.T. Council. The e-way bill system was prescribed by the Government of India only by a notification dated 7th March 2018. It being a case of inter-State transfer the provisions of C.G.S.T. Act 2017 were applicable and the State Government i.e. the Government of U.P. had no authority to issue an e-way bill in respect to such transactions, therefore, he says that the seizure as also penalty impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in matters of intra-State trade and commerce the ''C.G.S.T. Act 2017' and the State Goods and Services Tax Acts, which in this case is ''U.P.G.S.T. Act 2017', apply. Section 3 of the I.G.S.T. Act 2017 provides that the Board may appoint such Central Tax Officers as it thinks fit for exercising powers under this Act. There is no dispute about the fact that by virtue of section 4 of the I.G.S.T. Act 2017 the officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorized to be the proper officers for the purposes of the said Act, subject to such exceptions and conditions as the Government shall, on the recommendations of the Council by notification, specify. Similarly for enforcement of C.G.S.T. Act 2017 by virtue of section 6 thereof State Authorities under U.P.G.S.T. Act 2017 are also empowered to enforce C.G.S.T. Act 2017. It is also not in dispute that by virtue of section 20(xv) of the ''I.G.S.T. Act 2017' the provisions of ''C.G.S.T. Act 2017' apply in respect of matters covered by the I.G.S.T. Act 2017 on the subject of inspection, se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments which were required to be carried during movement of any consignment of goods were those which may have been notified by the Central Government under Rule 138 of the C.G.S.T. Rules 2017, as, by virtue of section 20(xv) thereof, it is this rule which is applicable to matters pertaining to I.G.S.T. Act 2017. Neither the State of U.P. nor the Government of India has brought on record any such notification which may have been issued prescribing the relevant documents to be carried in the course of such movement as is referred in section 68 of the C.G.S.T. Act 2017 and Rule 138 of the C.G.S.T. Rules 2017. In fact, Dr. Deepti Tripathi, learned counsel for the Government of India made a categorical statement on the basis of instructions that T.D.F. Form was not required to be carried for movement of inter- State goods to which the I.G.S.T. Act 2017 applies. In fact, as per Dr. Deepti Tripathi, learned Advocate appearing for the Government of India, C.G.S.T. Rules 2017 were amended on 30th August 2017 and vide another notification dated 29.12.2017 this amendment containing the E-way Bill system was to come into force from 1.2.2018, but, the notification dated 29th December 2017 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant date there was no prescription of the documents to be carried in this regard under Rule 138 of the C.G.S.T. Act 2017, accordingly, the seizure and penalty imposed upon the petitioners based on the notification dated 21.7.2017 issued under Rule 138 of the U.P.G.S.T. Act 2017, which was not applicable, is clearly illegal. Cross-empowerment under section 4 of I.G.S.T. Act 2017 and section 6 of C.G.S.T. Act 2017 merely means that State Authorities empowered under the U.P.G.S.T. Act 2017 can also enforce the provisions of C.G.S.T. Act 2017 or I.G.S.T. Act 2017, but it does not mean that they can apply the provisions of U.P.G.S.T. Act 2017 or Rules made thereunder to cases of inter- State trade in violation of section 20(xv) of I.G.S.T. Act 2017. It does not mean that the State Government can issue a notification under Rule 138 of U.P.G.S.T. Rules made under U.P.G.S.T. Act 2017 to prescribe documents to be carried in an inter-state supply of goods and services regarding which only the Central Government has the power under section 20(xv) of I.G.S.T. Act 2017 read with section 68 of C.G.S.T. Act 2017 and Rule 138 of C.G.S.T. Rules 2017. The fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detention in Ext. P5 notice impugned in the writ petition, the learned Government Pleader would take me through the provisions of the IGST Act, CGST Act and SGST Act and in particular, the provisions of Section 4 and Section 20 of the IGST Act and Section 6 of the CGST Act read with Rule 138 of the CGST Rules as amended by notification No.27/2017 - Central Tax for the purposes of pointing out that, although the power to prescribe the documents that are to accompany the transportation of goods in the course of interstate trade is conferred on the Central Government, the Central Government has, till date, not notified the documents that have to be carried by a transporter of the goods in the course of interstate movement. Under the said circumstances, and finding that neither the State Legislature nor the State Government would have the power to make laws/rules to govern interstate movement of goods in the course of trade, and for the purposes of levy of tax, I am of the view that detention in Ext.P.5, for the sole reason that the transportation was not accompanied by the prescribed documents under the IGST Act/CGST Act/CGST Rules, cannot be legally sustained. I therefore, allow t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t March, 2018 it was not mandatory to download the E-way bill from the official portal. We find the substance in the submission of the learned counsel for the petitioner that only with effect from 1st April, 2018 the requirement of downloading of the E-way bill is compulsory. However, without going into the said controversy at this stage, we find that the goods were bonafidely dispatched and are travelled from Raipur for the delivery at Basti are illegally and arbitrarily detained by the respondent No.2. We see no reason in seizing the goods and asking for the penalty. In view of the aforesaid facts and the reasons given here-in-above, the order passed under Section 129 (1) of the Act passed on 25.3.2018 and the show cause notice issued under Section 129 (3) of the Act are hereby set aside. The writ petition is allowed. In view of the above, the orders impugned cannot be sustained. The impugned orders dated 10.12.2017 and 30.3.2019, Annexed as Annexure No.1 to the writ petition, are hereby quashed . Consequences shall follow accordingly as per law. If the petitioner is entitled to refund of any amount, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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