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TMI Blog2020 (1) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner is a company trading in heavy machineries. In the course of its business the petitioner had bought one Soil Compactor machine from M/s. JCB India Limited, Maharashtra for the purpose of selling the same in the local market pursuant to an order placed by M/s. Akash Enterprise. b. As per the petitioner, the machinery was sold to M/s. Akash Enterprise upon raising valid sale documents as required under the CGST Act, 2017 and the corresponding State Act. The sale invoice and the delivery challan was raised and the insurance policy in favour of the buyer had also been taken out. On March, 23, 2019 the petitioner dispatched the goods to the destination at Banarhat, Jalpaiguri from the premises of the petitioner company at Salbari. The vehicle was loaded with the goods and was accompanied with the relevant sale documents and the insurance policy documents. However, as per the petitioner the waybill could not be generated as the server of the GST Portal remained continuously non-functional. c. According to the petitioner the vehicle had left the premises of the petitioner at 4.15 p.m. and the waybill was generated at 5.10 p.m. In the meantime, the vehicle had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r documents such as the invoice, challan and insurance policy were with the goods, there was no question of any mens rea for evading tax. E. The penalty that has been imposed was done so in contravention of Clause (3) and Clause (4) of Section 129 of the WBGST Act, 2017, that is, proper notice of the imposition of penalty was not provided to the petitioner. 4. Mr. Boudhayan Bhattacharyya, counsel appearing on behalf of the petitioner, laid great stress on the principles of violation of natural justice and submitted that the petitioner had no other forum to approach as the tribunal wherein the appeal lies from the order of the concerned officer has still not been constituted. He submitted that notice of hearing of the penalty to be imposed has to be given to the petitioner and not to the driver of the vehicle who was not the employee of the petitioner. He further submitted that compliance of the principles of natural justice is inbuilt in Section 129 of the WBGST Act, 2017 and is a sine qua non for any imposition of penalty. He further submitted that it is clear from the facts that the documents such as invoice, challan and insurance policy were with the goods and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved with the notice of imposition of penalty and such service was sufficient. He submitted that nowhere in the Act is there a requirement of service of the notice for imposition of penalty on the owner of the goods. Service on the driver of the seized vehicle carrying the goods is sufficient service. He, thereafter, relied on the Kerala High Court judgment in Assistant State Tax Officer, Squad No. VII, Ernakulam and Another -v- Indus towers Limited reported in [2018] 55 GSRT 404 (Ker) to advance the argument that the burden of proof is on the dealer to prove that the declaration/ e-waybill required to be furnished by the dealer was made before commencement of the transportation. He further submitted that it is the duty cast upon the dealer to ensure that the e-waybill is obtained prior to initiation of the transportation. 8. Mr. Bikramiditya Ghosh, counsel appearing on behalf of the State, relies on Circular bearing No.41/15/2018-GST dated April 13, 2018 to advance the argument that as per the Circular under Clause 2(g), the service of notice is required to be served upon the person-in-charge of the conveyance. He further submits that the service of the FORM GST MOV-07 is only re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 91), 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 any likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer." 11. A bare perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-company is having its registered office at Siliguri, Darjeeling District. Therefore, the reason for non-service of the notice by the Assistant Commissioner of State Goods and Service Tax, Siliguri upon the petitioner-company that was located within 15 kms. remains unexplained. 16. One may refer to the judgment of the Apex Court in A.S. Motors Private Limited v. Union of India, reported in (2013) 10 SCC 114, wherein the Supreme Court discussed in great detail the evolving jurisprudence with regard to the principles of natural justice. It would be apt in the circumstances to reproduce paragraph 8 of the above judgment hereinbelow:- "8. Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 129 (3) has not been served properly. Accordingly, there has been a clear violation of the principles of natural justice, and therefore,I quash and set aside the impugned order dated April 03, 2019 and direct the Assistant Commissioner of State Tax, Goods and Services Tax to issue a fresh notice upon the petitioner, and thereafter, grant an opportunity of hearing and pass a reasoned order. It is made clear that notice for hearing should be given seven days in advance and the petitioner should not seek any adjournment on the date of hearing.
20. I make it clear that as the matter has been remitted to the concerned officer for a reasoned decision, I have not gone into the aspect of mens rea at this stage. The arguments with relation to the requirement of mens rea under Section 129 of the WBGST Act, 2017 and the burden of proof and/ or rebuttal of the presumption of guilt is left open to be decided by the concerned officer.
21. With these observations, W.P.A. 82 of 2019 is disposed of.
22. There will be no order as to costs.
23. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities. X X X X Extracts X X X X X X X X Extracts X X X X
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