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TMI Blog2019 (12) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... o the corresponding similar provisions under the CGST Act. 2. The above appeal has been filed against the order dated 03.12.2018 passed by the Asst. Commissioner State Taxes & Excise Officer-cum-Proper Officer, Chamba vide which an additional demand of Rs. 4,90,908/- (Four Lakhs, Ninety thousand, Nine Hundred and Eight Rupees Only) was created against the appellant under Section 20 of HPGST Act, 2019 read with section 129 of the HPGST, 2017. 3. The present appeal was filed before the Addl. Commissioner Cum-first - Appellate Authority, State Goods & Service Tax, Himachal Pradesh on 10th Jan., 2019. The appeal was taken up for preliminary hearing admission on 04.02.2019. On the day of hearing Sh. Pankaj Arora (Ld. Adv) and Sh.Tarsem Sharma, Superintendent Chamba were present. Since the appeal was found in order, it was admitted and the departmental representative was directed to file written arguments in the case. Thereafter the case was heard on 26-02-2019 and 15-03-2019. Final hearing was held on 01.11.2019. On this date Sh. Nutan Mahajan, Asstt. Commissioner of State Taxes & Excise Chamba and Sh. Pankaj Arora (Ld. Adv.) were present. The case was heard and the judgment was res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in consonance with tax invoice, Gr and E- Way- bill particulars as per Annexure-3. There was no deviation from the goods declared in the invoice and the goods transported by the appellant. The goods detained were accompanied by a valid E-Way except the Part B was not having correct vehicle No. HP32A3097, the vehicle no. was written as HP 32A1597 in Part-B. The appellant has followed all the conditions and nothing adverse is available on the record that the appellant wanted to evade any tax during the movement of goods. A.2 The departments contention that there is mandatory requirement of filing all details accurately in part - B of the E-way Bill is not correct, as minor penalty can be imposed only if there is any minor mistake in Part B, and it is not be seen in oblivion, other aspects of the E-Way Bill are also to be looked upon. A.3 The Part A of the E-Way bill has been properly filed depicting the HNS, Quantity, Description of goods along with Price of Goods and the amount of Tax charged in terms of the movement of goods from one place to another both belonging to the appellant. A.4 The appellant has made all the entries of the above said transaction in its books of acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GST EWB-01 electronically on the common portal after furnishing information in Part B of FORM GST EWB-01. (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 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: A.6 On perusal of the Rule 138 of CGST Rules it can be seen that the primary basis for movement of goods is PART A of the E-Way Bill and the utmost importance of the same cannot undermined. The PART B is just the ratification of PART A by way of addition/updation of information about the details of the vehicle only. A.7 that is submitted that wrong filing of vehicle details in PART B was an inadvertent mistake and the does not render the whole transaction as illegal one. The harsh stanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 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; 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 sub-section (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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uble taxation and is totally unjustified. D,3. It is pertinent to mention here that the as per the provisions of Section 129, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this act or rules, the person is liable to pay applicable tax along with penalty, the relevant extract is reproduced below: (a) on payment of applicable tax and penalty equal to one hundred percent of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two percent of the value of such goods or twenty five thousand rupees, whichever is less, wherever the owner of gods come forward for payment of such tax and penalty. D.4 In the present case, as the Applicable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alh (Distt. Mandi) having E-Way Bill No. 3310 6862 1194 Dated: 01-12-2018 time: 04:03 pm valid up to 02-12-2018. A,3. Para is denied as per Rule 138 (3); Explanation (2), reproduced as "The E- Way Bill shall not be valid for movement of goods by road unless the information in Part-B of FORM GST EWB-01 has been furnished except in the case of movements covered under the third proviso to sub-rule(3)." The third proviso to sub-rule(3) of Rule 138 states as "Provided also that where the goods are transported for a distance for less than ten 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." 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of sec 129(1). C.1 As pointed out earlier also, the vehicle along-with goods was detained after following all the 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. Show Cause Notice in MOV-07 was duly issued and the Appellant Taxpayer deposited the tax and penalty after receipt of orders in MOV-09 after given due opportunity of being heard. The vehicle no HP32A-1597, which was found entered in e-way bill no. 03010 6789 8208 dated 29-11-2018 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-GS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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. 8. Therefore, keeping in view the above stated facts 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 Rs. 500/- under SGST and Rs. 500/- under CGST under section 125 of CGST/HPGST Act, 2017 is imposed on the taxpayer in accordance to GST Circular. The judgment in this case was reserved on 01.11.2019 which is released today. P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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