TMI Blog2021 (1) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... rtation does not take place and the dealer choses to cancel such e-way bill within 24 hours of its generation. Even if the dealer does not cancel the e-way bill within 24 hours of its generation, it would remain a matter of inquiry to determine on evidence whether an actual transaction had taken place or not. That would be subject to evidence received by the authority. As such it was open to the seizing authority to make all fact inquiries and ascertain on that basis whether the goods had or had not been transported pursuant to the e-way bills generated on 24.11.2019. Since the petitioner-assessee had pleaded a negative fact, the initial onus was on the assessing authority to lead positive evidence to establish that the goods had been tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r attempt to evade tax or even reuse of the documents by the petitioner. Though he raised that issue in the seizure proceedings, he did not record any finding that effect in the final order dated 3.12.2019 passed under Section 129(3) of the Act. He simply rejected the explanation furnished by the assessee without recording any reason and consequently imposed tax and penalty. No useful purpose would be served to remand the proceeding now as that would amount to giving the revenue a second inning to built a fresh case that too after being aware of the defense set out by the assessee in the first leg of the proceedings. The order dated 3.12.2019 passed by the proper authority under Section 129(3) of the Act is found to be perverse and is se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Goods and Service Tax Act, 2017 (hereinafter referred to as the Act) was passed, only one allegation was proposed to be levelled by the proper officer - of reuse of the aforesaid e-way bills. However, at the stage of final order passed under Section 129(3) of the Central Goods and Service Tax Act, 2017 (hereinafter referred to as the Act), no finding came to be recorded to that effect. Accordingly, by order dated 3.12.2019, the Assistant Commisioner (Mobile Squad)-4, Kanpur, revised a demand of tax and penalty ₹ 29,76,110/-. 5. The petitioner's appeal against that order came to be dismissed by order dated 22.6.2020 passed by the Additional Commissioner Grade-2 (Appeal)-5, Commercial Tax, Kanpur. However, it is noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the stage of appeal. Relying on Rule 112 of the Rules, it has been further submitted that the right to lead additional evidence at the stage of appeal, has been granted to the appellant only. Therefore, the appeal authority has wrongly allowed the application of the revenue authority who was the respondent in the appeal. In that regard, reliance has been placed on the decision of the Supreme Court in the case of Mohinder Singh Gill Anr. Vs. The Chief Election Commissioner, New Delhi Ors., AIR 1978 SC 851. 7. On the other hand, learned Standing Counsel opposed the petition and submitted that, in case the petitioner had not transported the goods as disclosed on the e-way bills, he should have acted in accordance with law and cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not take place and the dealer choses to cancel such e-way bill within 24 hours of its generation. 10. Even if the dealer does not cancel the e-way bill within 24 hours of its generation, it would remain a matter of inquiry to determine on evidence whether an actual transaction had taken place or not. That would be subject to evidence received by the authority. As such it was open to the seizing authority to make all fact inquiries and ascertain on that basis whether the goods had or had not been transported pursuant to the e-way bills generated on 24.11.2019. Since the petitioner-assessee had pleaded a negative fact, the initial onus was on the assessing authority to lead positive evidence to establish that the goods had been transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that may be brought on record by the revenue authority during the appeal proceedings. To do that would be to allow the order impugned in an appeal proceeding to be tested and affirmed on fresh reasons, existing outside the assessment or penalty order. Clearly, that is impermissible and against the principle laid down by the Supreme Court in Mohinder Singh Gill (supra) . In absence of specific Rule of procedure allowing the appeal authority to admit additional evidence at the behest of the respondent, it never became open to it to confront the petitioner with that evidence and draw it's independent conclusions based thereon. 13. In view of the above position, though the petitioner-assessee has also disputed the correctness of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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