TMI Blog2020 (10) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... he second vehicle was updated in the part-B of the E-way Bill at 11:52 am dated 6-11-2018. Despite the updation of the part-B of EWB the Ld. Respondent detained the vehicle and imposed tax/penalty to the tune of ₹ 16,28,23,728/-. As there is no doubt that the taxpayer has made procedural lapse and violated the provisions of the CGST/HPGST Act, 2017 and HPGST Rules 138(10) which says as Provided further that where, under circumstances of an exceptional nature, including transshipment, the goods cannot be transported within validity period of E-way Bill, the transporter may extend the validity period after uploading the detail in part B of the FORM GST EWB-01, if required . Therefore appellant should have updated the part 8 of EWB before resuming his journey further. So keeping in view the above facts the appellant is liable to pay minor penalty. The tax and penalty deposited by the appellant under Section 129(3) may be refunded and a penalty of Rs. Ten Thousand only is imposed on the taxpayer under Section 122(xiv) of the Act - appeal allowed. - Appeal No. 018/2019, Endst. No. EXN-018/2019-AA/ GST Shimla HP-3159-64 - - - Dated:- 14-2-2020 - Shri Rohit Chauhan, Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. N635D01290 and Engine No. 84808987 (copy attached) on the Invoice as these equipments are sold by equipment no and helps in identifying the material. That this E-way Bill No. 331061097912, dated 1-11-2018 was further updated on 5-11-2018 at 6.38 PM with the Vehicle No. PB35Q8464 with Consignment Note No. 479, dated 5-11-2018 for transportation from Pathankot to Chamba. (iii) That these facts are in order and there is no dispute to this effect. That after the same equipment which originally started from Pune was on its way to final distination in Chamba at night of 5-11-2018 the mentioned vehicle in the E-way Bill from Pathankot to Chamba Vehicle No. PB35Q8464 broke down on the way at mid night in dark with no help creating the Traffic problem on the Road and in public creating panic like situation the equipment was shifted to the new Vehicle No. PB10CT6249 for a small distance to destination. The vehicle broke down during night is well established with the fact that the vehicle was arranged/changed including loading unloading and the vehicle crossed at 7.30 am on 6-11-2018 as mentioned in the GST MOV-09. It may once again be noted that all the way machine no. and engine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d doubt that the documents were generated and were available and there was no intention for tax evasion In Satyendra Goods Tarnsport (2018-30-GSTJ-387) = 2018 (16) G.S.T.L. 602 (All.) In this case, the Hon. High Court had held that the assertion that the IGST has already been paid, has also not been denied by the opposite party nor that both the consignor and consignee are registered dealers. Moreover, the requisite details having been mentioned in the Invoice etc. the same would be verified at the point of destination. The Hon. High Court held that there was no intention to evade tax accordingly the Hon. High Court quashed the order levying penalty. Ramdev Trading Company (2018-32-GSTJ-197) = 2019 (22) G.S.T.L. 14 (All.) The Hon. Allahabad High Court in the instant case observed that at the stag of seizure detaining authority has not formed any opinion as to intention to evade tax. The only allegation made in the seizure order is about non-availability of transit declaration and misdescription of goods. There is no allegation as to intention to evade tax. While in the penalty order, it is recorded that the petitioner had intention to evade tax. Under these circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sold with intended tax evasion. That it is a human error and can be seen with naked eyes is detected such human errors cannot be capitalized for penalization (Rai Prexim India Private Limited v. State of Kerala) [2019 (23) G.S.T.L. 454 (Ker.) that the GST regime is new and for small and minor errors that penalty may not be levied. Reliance can be placed on the following cases which duly cover the facts similar to our case Tvl. R.K. Motors v. State Tax Officer, (Madras High Court) It is not in dispute that the writ petitioner is an authorised dealer of Bajaj Auto Limited. It is also not in dispute that the goods are covered by appropriate documents. The tax payable has also been paid by the writ petitioner s principal. Thus, it is not a case of any evasion of tax. It is not in dispute that the writ petitioner is carrying on the business of dealing in two wheelers for the past several years. The driver, who drove the vehicle in question is not a Tamilian. His name is Badrinath Bhandari. He hails from Maharashtra. I am of the view that even if by mistake, a wrong instruction had been given to the driver of the vehicle to head towards Sivakasi. Still it would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of UP Others [2018 (12) G.S.T.L. 137 (All.)] Surinder Steel Supply Company v. State of UP Others Modern Traders v. State of UP and Ors. [2018 (14) G.S.T.L. 184 (All.)] We find substance in the submission of the Learned Counsel for the petitioner. Once the E-way bill is produced and other documents clearly indicates that the goods are belongs to the registered dealer and the IGST has been charged there remains no justification in detaining and seizing the goods and asking the penalty. Now we come to the provision of penalty as per Sections 126 of the CGST Act, which is as under :- (1) No officer under this Act shall impose any penalty for minor breaches of tax regulations or procedural requirements and in particular, any omission or mistake in documentation which is easily rectifiable and made without fraudulent intent or gross negligence. Explanation. - For the purpose of this sub-section, - (a) a breach shall be considered a minor breach if the amount of tax involved is less than five thousand rupees; (b) an omission or mistake in documentation shall be considered to be easily rectifiable if the same is an error apparent on the face of recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is technical or venial breach of provision act Cement Marketing Company of India v. Asst. Commissioner of Sales Tax (1980) S.C. [1980 (6) E.L.T. 295 (S.C.)] In another case the Hon. Apex Court D. Navinchandra Co. v. UOI [1987 (29) E.L.T. 492 (S.C.)] where it has been held that .. Bona fide must be considered while imposing penalty and followed in various judgments like Akbar Badrudin Jiwani v. CC (S.C.) [1990 (47) E.L.T. 161 (S.C.)] In another case where it has been held that ....Even if minimum penalty is prescribed the authority will be justified in refusing to impose penalty, when there is a technical or venial breach ol the act Shiv Dutt Fateh Chand v. UOI, AIR 1984 SC 1194 If we go in detail even the Apex Court has taken lenient view with regard to imposition of penalty. There being no allegation of tax evasion by the Inspecting officials and therefore in view of the facts and submissions above tax and penalty levied be deleted/refunded. 4. Written Reply from the Respondent : The Part-B of the 331061097912 was updated at Pathankot as the goods were loaded in Vehicle No. PB-35Q-5464. In the said EWB, there is mention of transporter as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice No. 054, dated 1-11-2018 and E-way Bill No. 331061097912, dated 1-11-2018 was generated by the supplier. On dated 5-11-2018 the transhipment took place at Pathankot and consignment was loaded into another Vehicle No. PB35Q-8464 and updation E-way Bill was duly made at 06:38 p.m. with the validity up to 26-11-2018 the Vehicle No. PB35Q-8464 got break down on the way towards Chamba at midnight and new Vehicle No. PB10CT-6249 was arranged and transhipment took place before resuming the journey towards Chamba. The vehicle carrying material was intercepted in between Pathankot and Chamba by the checking team of the department on 6-11-2018 around 10:10 a.m. The driver of the vehicle was asked to furnish the document of the consignment. He produced the tax invoice issued by the M/s. Integrated Constructive Solution, Girakpur, Mohali to M/s. Raj Singh Thakur Govt. Contractor General Order Supplier, Chamba, HP which indicates value and all relevant details as equipment no., engine no. including GST itself. He produced E-way Bill also on which vehicle no. mentioned does not match. The appellant explained that due to break down of the Vehicle No. PB35Q-8464 the goods have been shifted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsustainable. 9. As there is no doubt that the taxpayer has made procedural lapse and violated the provisions of the CGST/HPGST Act, 2017 and HPGST Rules 138(10) which says as Provided further that where, under circumstances of an exceptional nature, including transshipment, the goods cannot be transported within validity period of E-way Bill, the transporter may extend the validity period after uploading the detail in part B of the FORM GST EWB-01, if required . Therefore appellant should have updated the part 8 of EWB before resuming his journey further. So keeping in view the above facts the appellant is liable to pay miner penalty. In this regard, attention is invited toward Section 122 of the CGST/HPGST Act which provides : 122. (1) Where a taxable person who - (i) supplies any goods or services or both without issue of any invoice or issues an incorrect or false invoice with regard to any such supply; (xiv) transports any taxable goods without the cover of documents as may be specified in this behalf; he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under section 51 or short dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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