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TMI Blog2020 (3) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Asst. Commissioner State Taxes & Excise (ACST&E)-cum-Proper Officer, Central Enforcement Zone, dated 06-11-2018 Una vide which an additional demand of Rs. 1,43,432/- was created against the appellant u/s 129 (1) (B) of HPGST & CGST Act, 2017. 3. Brief facts of the Case: That the assessee being unregistered dealer/transporter engaged his vehicle bearing no. PB 12 N 2248 with M/s Motor Heaven, Nangal having GST No. 03ADHPG3505C1ZE for transportation of two wheelers/Activa scooter to M/s Motor Heaven (P) Ltd. Mall Road Hoshiarpur Punjab having GST No. 03AAKCM7274K2Z2 against proper invoice bearing no. 763 dated 05-11-2018 for a sum of Rs. 3,27,842/- including GST of Rs. 71,715/- along with E-way Bill no. 3610-6232-4735 dated 05-11-2018. In the way the vehicle no. PB 12 N 2248 breakdown and the appellant arranged another vehicle PB 12 T 1910 and goods moved in new vehicle to its destination for Hoshiarpur. Due to weak internet connectivity the E-way bill was not updated w.r.t new vehicle no PB 12 T 1910 and the dealer carry on the goods in new vehicle with the old E-way bill generated on 05-11-2018 as the festival season i.e. Deepawali is falling on the next day and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the law or was guilty of conduct contumacious or dishonest or acted in conscious disregard to into obligation. Even if a minimum penalty is prescribed, the Authority will be justified in refusing to impose penalty, when there is a technical or venial breach of Act". The order dated 06-11-2018 passed by the ACST&E levying tax and penalty of Rs. 1,43,432/- pm the appellant is thus liable to be cancelled/deleted. iv) That the Ld. ACST&E has wrongly and without any justification passed order dated 06-11-2018 u/s 129 (3) of the CGST Act 2017 and charged tax and penalty equal to 100% of the tax payable on the goods in spite of the Circular No. 64/38/2018-GST issued by CBIC New Delhi dated 14-09-2018 whereby lessor penalty is prescribed for minor mistake/procedural requirement of law which is easily rectifiable; hence the order levy of tax & penalty dated 06-11-2018 is liable to be cancelled/deleted. v) That there was no mela-filed/Fraudulent intension on the part of the appellant is not updating the vehicle no in the E-way bill challan but it was due to week internet connectivity the same could not be updated and even later on before issuance of show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Dated 05-11-2018 on which vehicle number mentioned did not match with the vehicle number carrying goods i.e. vehicle no mentioned on EWB is PB12N-2248 & vehicle number carrying Goods is PB 12T 1910. I want to bring your attention to the point that the appellant has not mentioned vehicle number on the concerned invoice. 1. As far as the issue of net connectivity.is concerned as the appellant has mentioned in his application, I want to submit that the time span he discussed about poor net connectivity, at the same time a number of vehicles were checked b our team on EWB App and no such issue of poor net connectivity came to our knowledge. More over the E-way bill which the party produced was generated on 05-11-2018 on 09:43 PM, whereas, the vehicle was intercepted on 07:40 AM dated 06-11-2018. 2. Similarly, he also raised the issue that the vehicle showing in E-way bill met with technical fault and the goods were replaced in the new vehicle, but, the owner of the goods and even the driver of the vehicle have not mentioned this point at the time of checking and if they raise this point at that time, we might see faulty vehicle physically as the distance of our Naka a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalty are not paid within seven days from the date of the issue of the order of detention in FORM GST MOV-06, action under section 130 of the CGST Act shall be initiated by serving a notice in FORM GST MOV-10, proposing confiscation of the goods and conveyance and imposition of penalty. This case also doesn't come under the ambit of the section as the owner of the goods has come forward to pay the amount of proposed tax and penalty and get the goods and vehicle release. In the light of the points mentioned above, the appeal of the appellant may be dismissed as his mistake of fled way the vehicle from Naka, not producing the E-way on the spot, having wrong vehicle No. on the e-way bill produced later and not mentioning the vehicle No. on invoice/GR No. can't be co-existences. Hence, it is prayed that the appeal of the appellant may be dismissed as the penalty is imposed as per the spirit of the law and ignorance of law is not excuse. xxxxxx 6 After hearing both appellant and respondent in detail the common facts in the instant case in brief are that the appellant is an unregister dealer/transporter under GST and used to engage his vehi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of inspection of the vehicle. The appellant updated the e-way bill and the number of the second vehicle was updated in the part-B of the e-way bill. Despite the updation of the part-B of EWB the Ld. Respondent detained the vehicle and imposed tax/penalty to the tune of Rs. 1,43,432/- 8. The appellant has already declared the consignment on 05.11.2018 at 09:43 p.m. which makes it clear that there was no intention to evade tax. The Ld. Respondent also failed to prove that the appellant changed the vehicle to evade tax. In my opinion the proper officer has acted in haste and levied tax/penalty without giving proper opportunity of being heard as mentioned in Section 129(4) read as under- "No tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. " 9. The Ld respondent has imposed penalty in a mechanical manner and has ignored the corrected and updated e-way bill as produced by the appellant. Therefore, the tax/penalty under section 129(3) of the CGST/HPGST Act, 2017 imposed is unsustainable. 10. As there is no doubt that the taxpayer has made procedural lapse and violated ..... 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