TMI Blog2019 (12) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The said circular and the subsequent notification under the HPGST Act have to be followed and the benefit cannot be denied to the appellant for paltry errors of two digits in the vehicle number. The e-way bill has been duly generated and no mistake has been found in all other information entered in the EWB. The respondents have also not been able to prove beyond doubt nor submit any substantial evidence that the appellant was adopting the system of wrong mentioning of vehicle numbers in the EWB as their modus operandi to evade taxes. The orders of ACST E, Chamba are set-aside on the ground that the standard operating procedure mentioned in Circular No 64/38/2018 dated 14th September, 2018 and the HP circular no. 12-25/2018-19-EXN-GST-(575)-6009-6026 dtd 13th March 2019 valid from 14-09-2018 was not taken into consideration while imposing penalty in the instant case - The additional demand deposited by the appellant may be refunded and the penalty of ₹ 500/- under SGST and ₹ 500/- under CGST under section 125 of CGST/HPGST Act, 2017 is imposed on the taxpayer in accordance to GST Circular. - Order No. 31749-754 Appeal No. 001/2019 - - - Dated:- 7-12-2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business. (ii) That the appellant had sold Beedi having chapter heading 2403 vide invoice number KBE/1073 dated 29.11.2018 total value of ₹ 8,76 604 and levying CGST and SGST for Rs. each. The Vehicle No. HP 32A 3097 was carrying goods to transport the same to the purchasing dealer M/s. Kaka Ram, Radhey Shyam Chamba, having GSTIN 02AANPL8404E1ZZ. (iii) That the said vehicle was intercepted for checking by the Assistant Commissioner of State Taxes Excise Chamba, and his staff on dated 01.12.2018. The driver/person in-charge of the vehicle had tendered the documents accompanying the vehicle such as invoice, Goods Receipt Note, E-way Bill in respect of the consignment. (iv) That on scrutiny of the documents provided by the driver person/in- charge of the vehicle, the ACST E found all the documents were in order except the mistake in vehicle no, mentioned as HP 32A1597 in part -B of the E-Way Bill No. 301067898208. (v) That the goods were detained by commercial tax officer vide detention order GST MOV-06 dated 01.12.2018 Under Section 129(1) of the CGST/HPGST Act. Accordingly, the appellant got present before the detaining auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T portal. Given this the intention to evade tax could not be attributed to the appellant. Therefore the penalty should be posed on the Appellant. A.5 The Rule of the CGST Rules, 2017 provides the procedure for movement of the Goods. The relevant extract of Rule 138 of the CGST Rules, 2017 is reproduced as under :- 138. Information to be furnished prior to commencement of movement of goods and generation of e-way bill.- (1) Every registered person who causes movement of goods of consignment value exceeding fifty thousand rupees- (i) in relation to a supply; or (ii) for reasons other than supply; or (iii) due to inward supply 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. 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 generated eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken on it by the department. A.8 It is well settled by the various authorities and courts that substantive benefit could not be denied for procedural mistakes in the present case of mistake of vehicle no. in Part B is an inadvertent and procedural mistake. The Appellant should not be penalized for the same in the absence of any intention to evade tax. A.9 That in case of Commissioner of Central Excise v/s Addi alloys Pvt. Ltd. 2000 (122) E.L.T. 526 (tribunal) = 2000 (3) TMI 346 - CEGAT, NEW DELHI , the Hon ble Tribunal has held that:- Modvat credit under Rule 57A cannot be denied on the ground that the manufacturer failed to file D-3 declaration in accordance with the directions given in the Commissionerate Trade Notice- Rules 57A of the Central Excise Rules, 1944. [para 6]. A.10 In view of above the penalty imposed on the Appellant is not sustainable and liable to be set aside in the interest of justice. (B) CIRCULAR PROVIDES FOR THE MINOR PENALTIES IN CASE OF MINOR MISTAKES. B.1 It is well settled principal that the revenue authorities has to ascertain implication of revenue involved in breach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument 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 situation, penalty to the tune of ₹ 500/- each under section 125 of the CGST Act and the respective State GST Act should be imposed (₹ 1000/- under the IGST Act) in FORM GST DRC-07 for every consignment. A record of all such consignments where proceedings under section 129 of the CGST Act have not been invoked in view of the situations listed in paragraph 5 above shall be sent by the proper officer to his controlling officer on a weekly basis. B.4 That the above cited provisions of the circular clearly states that in case, where there is mistake of one or two digits/characters of the vehicle number, the maximum penalty imposable is ₹ 500/- in each Act i.e. ₹ 500/- for CGST and ₹ 500/- for SGST Act. (C) ORDER PASSED WITHOUT SHOW CAUSE NOTICE BY ADJUDICATING OFFICER ARE INVALID AS THE SAME IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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. C.2. Reliance is also place on the judgment of Hon'ble Tribunal in case of COMMISSIONER OF C.EX. CUS., AURANGABAD VS. SIDHESHWAR SSK LTD. = 2011 (3) TMI 1219 - CESTAT, MUMBAI wherein it was held that it is not open for Department to by-pass legal requirement of issuance of SCN before conclusion of adjudication proceedings. The Department not to find out short-cut method. The relevant extract is reproduced below. When the law clearly required issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able tax i.e. CGST/ HPGST already stands paid by the Supplier of the goods, the same cannot be demanded from the Appellant again stands paid by the Supplier of the foods, the same cannot be demanded from the Appellant again and therefore, the demand of CGST and HPGST confirmed by the Ld. Adjudicating Authority leads to a scenario of double taxation, which is neither the intention nor the mandate of the GST law. D.5 That the said action of imposing the double tax on single transaction also violates the basic principles of equity enshrined in the constitution of India and at the same time devoid, the appellant of right of natural justice. D.6 Given this the demand confirmed vide impugned order is not sustainable and liable to be set aside in the interest of justice. The appellant prayed to set aside the impugned order passed by the Ld. Assistant Commissioner of State Taxes and Excise, Chamba and has requested to pass an order of refund of tax and penalty deposited by the appellant against the said order. XXXXX 6. In the reply of the above grounds of appeal, respondent Sh. Nutan Mahajan ACSTE Chamba has submitted following point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A,4. Para is denied as sub rule (9) of Rule 138 reproduced as Where an E-Way bill has been generated under this rule, but goods are either not transported or are not transported as per the details furnished in the E-Way bill, there E-Way bill may be cancelled electronically on the common portal, within 24 hours of generation of the E-Way bill: Provided that an E-Way bill cannot be cancelled if it has been verified in transit in accordance with the provisions of rule 138B: Provided further the unique number generated under sub-rule (1) shall be valid for 72 hours for updation of part B of FORM GST EWB-01 B.1 The Adjudicating Authority has rightly imposed penalty u/s 129 of the Acts ibid as there was an intention to evade the tax. B.2 There was a deliberate attempt to evade the tax on the pretext of minor mistake and penalty has rightly been imposed. B.3 It is pertinent to mention here that appellant firm owns a fleet of Goods carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-2018 at the time of inspection on 01-12-2018 at 5:00 PM, was engaged in another consignment being transported from Baggi (Distt. Mandi) to Balh (Distt Mandi) having e-Way Bill No. 3310 6862 1194 Dated: 01/12/2018 time: 04:03 Pm and taxpayer could not forward any explanation for this anomaly. C.2 The Show Cause Notice in MOV-07 was duly served. C.3 The order in MOV-09 has been rightly passed by the Adjudicating Authority. C.4 As pointed out earlier also, procedure for interception of conveyances for inspection of goods in movement, and detention of such goods and conveyances as per Circular No. 41/15/2018-GST dated 13-04-2018 has been duly followed and penalty u/s 129 of the act ibid has rightly been imposed. C.5 The penalty orders have been passed by the Adjudicating Authority after following due procedure and after given due opportunity of being heard and are on the principal of natural justice. D.1 Accepted. D.2 There is an attempt on part of the Appellant Taxpayer to evade tax and therefore, penalty along with applicable tax under section 129 (1) (a) of the Act ibid has rightly been imposed by the Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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