TMI Blog2020 (11) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax or interest or penalty shall be determined unless the person concerned is given an opportunity of being heard incorporates the seminal principle of fair play which is inherent in the established principle that no person is to be condemned unheard. If the CTO intended to rely upon data maintained by a third party and shared by such third party pursuant to the communication made by him, the fair play makes it incumbent on the CTO to provide an opportunity to the petitioner to meet the data lest the petitioner is fastened with the liability to pay either the tax or interest or penalty on the basis of the data that, allegedly and as is now alleged by the petitioner, is obtained behind its back to its detriment. Petition allowed in part. - WRIT PETITION NO. 10589/2020 (T/RES) - - - Dated:- 21-10-2020 - HON BLE MR. JUSTICE B. M. SHYAM PRASAD PETITIONER (BY SRI. GOVINDRAYA KAMATH.K., ADVOCATE) RESPONDENTS (BY SRI. HEMA KUMAR., AGA) O R D E R The petitioner is registered as a dealer under the Delhi Service Tax Act, and is engaged in, amongst others, trading and importing of hand held walkie-talkie sets. The petitioner has filed this petition impugning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such notice. 4. The proceedings in JCCT(VIG)/CTO(VIG)- 40/SRS/INS-16/2018-19 is with regard to the transportation of the consignment without e-way bills in the vehicle, and the other proceedings in JCCT (VIG)/CTO(VIG)-40/SRS/INS- 15/2018-19 relates to the vehicle bearing registration No. KA 02 AG 9261, and there is no dispute that notice in Form GST MOV-07 is issued by the CTO even in respect of this other vehicle bearing registration No. KA 02 AG 9261 after issuance of the required endorsements in the prescribed Forms. 5. The petitioner has filed its response dated 08.02.2019 with the Joint Commissioner of Commercial Taxes (Vigilance), Bengaluru placing on record inter alia that the CTO intercepted the vehicle within 3-4 km of Bangalore Airport Customs Office. The driver of the vehicle, because he got the clearance early and everything was found correct, left the premises before the e-way bills were generated. However, the e-way bills were generated before interception. The error is bona fide and unintentional and there was no intention to evade tax. The petitioner s authorised persons and advocates have also subsequently filed a detailed response stating that e-way bills fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o abide the conditions of the Notification (4-D/2017), No. FD 47 CSL 2017, Bengaluru, 30.08.2017 and has not produced the e-way bills at the time of interception. So failure to comply to the conditions of the Notification, the respondent is right in levying the penalty under section 129(3) of the CGST and SGST Act, 2017. Therefore, the order passed by the respondent is upheld to meet the ends of justice. Further, the appellant contends that as per the Google Map Track record, the vehicle was within the premises of Menzies Aviation until 3p.m.. But the respondent has proved that the statement is not correct since the said goods vehicle KA 02 AG 9261 entered airport for loading at 2:12 .p.m. and exited at 2:33 p.m. as per Menzies Aviation Security records. In this regard the respondent corresponds with the Menzies Aviation Security vide letter dated 18-02-2019 and Menzies Aviation Security in turn responded by providing entry and exit information of the said vehicles on 18-02-2019. 8. The second respondent has also concluded that the petitioner's contention that the Endorsements in the prescribed form are issued at 4:15 p.m. at the CTO Enforcement Office and the prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank Guarantee furnished by the petitioner for securing the release of the goods as contemplated under section 107 of the KGST Act. The respondents, during the pendency of the appeal proceedings, could not have encashed the Bank Guarantee. 12. The learned Additional Government Advocate per contra, contends that the second respondent has relied upon the irrefutable data available on GSTIN in arriving at the conclusion that the consignment was moved from the airport premises even before the generation of the e-way bills. The data available on GSTIN cannot be controverted, as attempted by the petitioner, relying upon Internet tools such as Google Map to establish vehicle s location at the relevant time. Once it is established that the consignment is moved without generating e-way bills, the violation of the provisions of Rule 138 of the KGST Rules is established leading to the consequences under section 129(3) of the KGST Act. As such, the petitioner has not made out any grounds for interference under Article 226 of the Constitution of India. 13. As it appears from the rival submissions and the petition averments, the dispute lies within a narrow compass: was the consignment mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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