TMI Blog2022 (5) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... ice has been raised by Bhaskar Steel and Ferro Alloy Pvt. Ltd. dated 7th September, 2019. There is no dispute as regards the quantity and description of the goods. The said vendor had raised the eway bill dated 7th September, 2019 as the goods were to be despatched from SRMB Srijan Pvt. Ltd. to the writ petitioner, who had its registered office at Kolkata. The said e-way bill was valid upto 9th September, 2019 since the approximate distance was about 168 kilometers. The writ petitioner s case was that they are traders and they had a supply order from Om Dayal Educational and Research Society, which also has its registered office at Kolkata but, however the goods had to be shifted to a place in Durgapur. Therefore, the writ petitioner raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance:- Md. T. M. Siddique, Mr. Soumitra Mukherjee, Mr. Debasish Ghosh .....for the appellant. Mr. Ankit Kanodia, Mr. Himangshu Kumar Ray, Ms. Megha Agarwal .. for the respondent. JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, J.) 1. This intra Court appeal at the instance of the department is directed against the order dated 1st March, 2022 in W.P.A. No.11085 of 2021. In the said writ petition, the respondent herein challeged the order passed by the Joint Commissioner (Appeal), CGST and CX, Kolkata Appeal I Commissionerate dated 18th March, 2021. The said appeal filed before the Joint Commissioner was directed against the order of demand of tax and penalty in Memo dated 11th September, 2019 iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat non-extension of the validity of the e-way bill was not deliberate and willful but due to the circumstances as stated. When such was the factual position, the learned single Bench ought not to have allowed the writ petition by accepting the said argument, which was placed for the first time when the writ petition was moved before the Court. 4. Further, on fact, the learned counsel appearing for the appellant had elaborately referred to the findings recorded by the appellate authority and argued that the learned writ Court ought not to have interfered with the order of demand of tax and penalty. 5. The learned counsel appearing for the respondent / writ petitioner submitted that the bona fides of the writ petitioner has to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the view that in the instant case, the bona fides of the writ petitioner has to be tested on the documents, which were available on record. Firstly, we find that the tax invoice has been raised by Bhaskar Steel and Ferro Alloy Pvt. Ltd. dated 7th September, 2019. There is no dispute as regards the quantity and description of the goods. The said vendor had raised the eway bill dated 7th September, 2019 as the goods were to be despatched from SRMB Srijan Pvt. Ltd. to the writ petitioner, who had its registered office at Kolkata. The said e-way bill was valid upto 9th September, 2019 since the approximate distance was about 168 kilometers. The writ petitioner s case was that they are traders and they had a supply order from Om Dayal Educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal and the application filed by the department are dismissed and the appellant is directed to process the application for refund filed by the respondent on 7th March, 2022 and orders be passed thereon in terms of the direction issued by the learned writ Court within a period of two weeks from the date of receipt of the server copy of this judgment and order. 11. We make it clear that we have examined the facts of the case on hand, the bona fides of the respondent / writ petitioner and then arrived at a conclusion that it is not a case of willful attempt to evade payment of tax and therefore, the decision having been rendered on the peculiar facts cannot be treated as a precedent. 12. Urgent photostat certified copy of this order, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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