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TMI Blog2021 (4) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred to as the respondent). 2. Brief Facts of the case:- 2.1 The officers of the CGST Division-F, Bharatpur have intercepted a conveyance/vehicle bearing No. RJ 14 GH-3065 on 27.09.2019 at NH- 123, Khanua, Distt-Bharatpur (Raj). The statement of the Driver/personin- charge of the conveyance Sh. Deenu Urf Abbas S/o Sh. Mohammad Khan resident of Village-Kakrana, Tehsil-Nagar, Bharatpur-321205(Raj) was also recorded on 27.09.2019. The goods in movement were physically inspected under the provisions of sub-section (3) of Section 68 of the CGST Act, 2017 (hereinafter referred to as the 'Act') read with Section 20 of the IGST Act, 2017 on 29.09.2019 and following discrepancies were noticed:- (i) The E-way Bill was not tendered for all the Invoices/Goods in movement which are the one of the documents for transportation of goods. 2.2 The impugned goods and the conveyance used for the transportation of goods were detained under sub-section (1) of Section 129 of Central Goods and Service Tax, Act 2017 read with Section 20 of the Integrated Goods and Service Tax Act, 2017 by issuing an order of detention in FORM GST MOV-06 and the same was served on the person In charge of Conveyan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haratpur to file Appeal before the Additional Commissioner (Appeals), CGST, Jaipur within the stipulated period for determination of the correctness of the impugned order. Accordingly, the appellant department filed this appeal for the purpose of satisfying as to the correctness, legality or propriety of the impugned order. 4. The appellant also stated that application is being submitted in accordance with Notification No.55/2020- Central Tax dated 27.06.2020 amending Notification No.35/2020-Central Tax dated 03.04.2020. 5. The respondent vide this office letter No. APPL/JPR/CGST/AL/60/VIII/2020/3645 dated 24.12.2020 were called upon to file a memorandum of cross objection against the appeal, within 45 days of receipt of this notice, filed by the department. The respondent submitted their memorandum of cross objection on 08.02.2021 which is as under:- i) We pray to consider Invoice without E-way Bill having Invoice value below Rs. 50,000/- as Govt given an option to both Registered Dealer and Transporter to not to generate E-way Bill where value of Goods carried in the conveyance is less than Rs. 50,000/-; Notification No.15/2018 dated 23.03.2018 also provide that where aggrega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Order of adjudicating authority, they are required to file an appeal under Sub Section (1) of Section 107 of the Act in accordance with Rule 109 of the CGST Rules, 2017 within prescribed time limit. In view of above submission, the claim of the respondent as mentioned in their cross objection is not sustainable. The appeal has been filed by the department on the ground that owner has failed to come forward for deposition of tax and penalty and the transporter made payment of tax and penalty under Section 129 (1) (a). Section 129(1) (a) provide an option for payment of tax and penalty in case owner comes forward. If owner does not come forward and any person other than owner comes for payment of tax and penalty, the penalty should be equal to the fifty % of value of the goods reduced by the tax amount paid thereon under Section 129(1) (b) of the CGST Act, 2017. 8. Sh.G.R.Meena, Assistant Commissioner, Division-F, Bharatpura appeared for personal hearing on behalf of the department and sought adjournment in the case. Further, personal hearing in virtual mode through video conference was held on 04.03.2020. During personal hearing he informed that he has submitted written su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Order dated 30.09.2019, the Adjudicating Authority has erred to impose penalty under Section 129(1) (a) instead of Section 129(1) (b) of the CGST Act, 2017 which resulted in short payment of penalty. Before deciding the issue, it would be proper to look into the relevant provision which is as under:- SECTION 129. Detention, seizure and release of goods and conveyances in transit. - (1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released, - (a) on payment of the applicable tax and penalty equal to one hundred per cent of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two percent of the value of goods or twenty five thousand rupees, whichever is less, where the owner of the goods comes forward to pay such tax and penalty. (b) on payment of the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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