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TMI Blog2022 (5) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... voice. Further the e-way bill was also generated where the sender's name has been mentioned as SAFE Climber and name of the purchaser i.e. petitioner has been mentioned and ship to K.R. Industries (Sandila). The said e-way bill was valid for a period up to 15.2.2020 along with bill builty of New Sagar Indore Transport Corporation, the contract was also accompanying. The said consignment was onward journey from Maharastra to Sandila, (U.P.) through Vehicle no. MP 09 HH9980. After reaching the said goods in the State of U.P., the same was intercepted by Mobile Squad at Kanpur and detained the vehicle on 7.2.2020. On detention of goods, certain documents were shown i.e. tax invoice of the petitioner, builty and e-way bill but after the detention, show cause notice was issued under Section 129 (3) of the Central G.S.T. Act for determining the tax and penalty in respect of release of the goods and vehicle in Form GST-MOV-07 dated 7.2.2020. The petitioner submitted reply to the show cause notice but the respondents without considering the same, passed the order dated 8.2.2020 demanding the petitioner to deposit the tax and penalty as determined. The petitioner deposited a sum of Rs.76,66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the tax invoice requires for generation of e-way bill. The tax invoice raised by the petitioner bearing tax Invoice no. 636 dated 31.1.2020 was not supported by e-way bill. Therefore, the authorities were not justified for demanding the tax as well as penalty thereon and the appellate authority was however justified in rejecting the appeal of the petitioner. He prays for dismissing the present petition. 5. After hearing learned counsel for the parties, the Court has perused the records. 6. The issue involved in the present writ petition cannot be decided without referring to the relevant provisions i.e. Sections 68, 129 (3), 130 Central Goods and Service Tax Act 2017 as well as Rules 130 and 138 A of Central Goods and Service Tax Rules, 2017. The relevant Sections as well as Rules are quoted hereunder:- Central Goods and Service Tax Act 2017 Section 68: Inspection of goods in movement. (1) The Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed. (2) The details of documents required to be carried under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. (5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded. (6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within [fourteen days] of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of section 130: Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer. Section 130. Confiscation of goods or conveyances and levy of penalty. (1) Notwithstanding anything contained in this Act, if any person (i) supplies or receives any goods in contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or (ii) does not account for any goods on which he is liable to pay tax under this Act; or (iii) supplies any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not required in any other proceedings under this Act and after giving reasonable time not exceeding three months to pay fine in lieu of confiscation, dispose of such goods or conveyance and deposit the sale proceeds thereof with the Government. Central Goods and Service Tax Rules, 2017 :- Rule 138 - Information to be furnished prior to commencement of movement of goods and generation of e-way bill. (1) Every registered person who causes movement of goods of consignment value exceeding fifty thousand rupees- (i) in relation to a supply; or (ii) for reasons other than supply; or (iii) due to inward supply from an unregistered person, shall, before commencement of such movement, furnish information relating to the said goods as specified in Part A of FORM GST EWB- 01, electronically, on the common portal along with such other information as may be required on the common portal and a unique number will be generated on the said portal: Provided also that where goods are sent by a principal located in one State or Union territory to a job worker located in any other State or Union territory, the e-way bill shall be generated either by the principal or the job worker, if re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of movement, furnish, on the common portal, the information in Part B of FORM GST EWB 01: Provided that where the goods are transported by railways, the railways shall not deliver the goods unless the e-way bill required under these rules is produced at the time of delivery. (3) Where the e-way bill is not generated under sub-rule (2) and the goods are handed over to a transporter for transportation by road, the registered person shall furnish the information relating to the transporter on the common portal and the e-way bill shall be generated by the transporter on the said portal on the basis of the information furnished by the registered person in Part A of FORM GST EWB-01: Provided that the registered person or, the transporter may, at his option, generate and carry the e-way bill even if the value of the consignment is less than fifty thousand rupees: Provided further that where the movement is caused by an unregistered person either in his own conveyance or a hired one or through a transporter, he or the transporter may, at their option, generate the e-way bill in FORM GST EWB-01 on the common portal in the manner specified in this rule: Provided also that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of sub-rule (1), where multiple consignments are intended to be transported in one conveyance, the transporter may indicate the serial number of e-way bills generated in respect of each such consignment electronically on the common portal and a consolidated e-way bill in FORM GST EWB-02 maybe generated by him on the said common portal prior to the movement of goods. (7) Where the consignor or the consignee has not generated the e-way bill in FORM GST EWB-01 and the aggregate of the consignment value of goods carried in the conveyance is more than fifty thousand rupees, the transporter, except in case of transportation of goods by railways, air and vessel, shall, in respect of inter-State supply, generate the e-way bill in FORM GST EWB-01 on the basis of invoice or bill of supply or delivery challan, as the case may be, and may also generate a consolidated e-way bill in FORM GST EWB-02 on the common portal prior to the movement of goods: Provided that where the goods to be transported are supplied through an e-commerce operator or a courier agency, the information in Part A of FORM GST EWB-01 may be furnished by such e-commerce operator or courier agency. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerated and the period of validity shall be counted from the time at which the e-way bill has been generated and each day shall be counted as the period expiring at midnight of the day immediately following the date of generation of e-way bill. Explanation 2.- For the purposes of this rule, the expression "Over Dimensional Cargo" shall mean a cargo carried as a single indivisible unit and which exceeds the dimensional limits prescribed in rule 93 of the Central Motor Vehicle Rules, 1989, made under the Motor Vehicles Act, 1988 (59 of 1988). (11) The details of the e-way bill generated under this rule shall be made available to the- (a) supplier, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the recipient or the transporter; or (b) recipient, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the supplier or the transporter, on the common portal, and the supplier or the recipient, as the case may be, shall communicate his acceptance or rejection of the consignment covered by the e-way bill. (12) Where the person to whom the information specified in sub-rule (11) has been made available does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (i), vide number G.S.R 679(E)dated the 28th June, 2017 as amended from time to time and notification No. 26/2017- Central Tax (Rate), dated the 21st September, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R 1181(E) dated the 21st September, 2017 as amended from time to time; (k) any movement of goods caused by defence formation under Ministry of defence as a consignor or consignee; (l) where the consignor of goods is the Central Government, Government of any State or a local authority for transport of goods by rail; (m)where empty cargo containers are being transported; and (n) where the goods are being transported upto a distance of twenty kilometers from the place of the business of the consignor to a weighbridge for weighment or from the weighbridge back to the place of the business of the said consignor subject to the condition that the movement of goods is accompanied by a delivery challan issued in accordance with rule 55. (o) where empty cylinders for packing of liquefied petroleum gas are being moved for reasons other than supply. Explanation.- The facility of generation, cancellation, updation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... INV-1. (4) The Commissioner may, by notification, require a class of transporters to obtain a unique Radio Frequency Identification Device and get the said device embedded on to the conveyance and map the e-way bill to the Radio Frequency Identification Device prior to the movement of goods. (5) Notwithstanding anything contained in clause (b) of sub-rule (1), where circumstances so warrant, the Commissioner may, by notification, require the person-in-charge of the conveyance to carry the following documents instead of the e-way bill (a) tax invoice or bill of supply or bill of entry; or (b) a delivery challan, where the goods are transported for reasons other than by way of supply."; 7. Section 68 empowers the competent officer to inspect any conveyance carrying consignment of goods and verify any such documents as may be prescribed where the competent officer intercept the said conveyance. He may require the person in charge of the said conveyance to produce such document prescribed under the said Act for verification and such person shall be liable to produce the document and also allow to inspect the goods. 8. Section 129 provides that any person transports any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivery of PVC Resin, directly to its purchaser namely K.R. Industries, Sandila, UP. While the goods was in transit along with invoice given by the seller of the petitioner namely SAFE Climber, it also issued tax invoice and charged I.G.S.T. and also generated e-way bill. In the e-way bill, the name of the petitioner was specifically mentioned and it further provided that the goods to be shifted to K.R. Industries, Sandila U.P. When the goods was in transit and entered in State of U.P. and reached at Kanpur without taking delivery of the goods, the petitioner handed over the tax invoice after charging C.G.S.T. and S.G.S.T. Copy of the bills have been annexed as Annexure no. 2 to this petition, which clearly discloses the said fact. 12. The record further reveals that the e-way bill generated by the Maharastra party where the name of the petitioner and for delivery of the goods was to be made to the buyer of the petitioner i.e. K.R. Industries, Sandila, U.P. was specifically mentioned. In other words e-way bill clearly mentions the name of the buyer i.e. petitioner and ship to K.R. Industries, Sandila (U.P.). The e-way bill, generated by the Maharastra party was valid up to 15.2.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Rule 138 A of G.S.T. Rules. Once the valid document i.e. e-way bill was accompanying with the goods, the authorities ought to have release the vehicle. 13. On identical set of fact, the Apex Court in the case of Assistant Commissioner (S.T.) and others Vs. M/s Satyam Shivam Paper Pvt. Limited and another in Special Leave to Appeal (c) No. 21132 of 2021 decided on 12.1.2022, while dismissing the appeal of State has enhanced the cost and observed as under:- "The analysis and reasoning of the High Court commends to us, when it is noticed that the High Court has meticulously examined and correctly found that no fault or intent to evade tax could have been inferred against the writ petitioner. However, as commented at the outset, the amount of costs as awarded by the High Court in this matter is rather on the lower side. Considering the overall conduct of the petitioner No.2 and the corresponding harassment faced by the writ petitioner we find it rather necessary to enhance the amount of costs. Upon our having made these observations, learned counsel for the petitioners has attempted to submit that the questions of law in this case, as regards the operation and effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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