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TMI Blog2022 (11) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of penalty order. Petitioner has also sought a declaration that entire exercise of seizure and detention undertaken by the respondent no. 3 is wholly illegal and without jurisdiction. 3. Petitioner is engaged in the business of transportation of goods and logistic services across India and is registered taxpayer in the State of Jharkhand under GST Act. The impugned order has been passed in connection with show-cause notice in Form GST MOV-07 (Annexure-8) on the allegation of goods being transported without E-Way bill. The E-Way bill no. 831009277766 was issued for transportation of goods from warehouse of ITC Limited at Howrah, West Bengal to their warehouse at Jamshedpur by vehicle bearing registration no. HR 55 AC 8504 on 27th June, 2018 and valid upto 30th June, 2018. The vehicle was intercepted on 6th July, 2018 at 08:25 a.m. at NH 33 under Section 68(3) of CGST Act, 2017 and finding discrepancy of goods being transported without E-Way bill, the impugned notice was issued on 7th July, 2018 asking the driver to show-cause within seven days as to why the proposed tax and penalty of Rs. 8,25,828/- be not imposed. The driver, Sukhdeo Gope was directed to appear on 10th July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25,828/- in terms of Section 129(1)(b) of JGST Act, 2017 was being imposed upon him. Thereafter, the order of demand of tax and penalty in Form GST MOV-09 was also issued and served on the driver on 12th July, 2018. 6. Being aggrieved, petitioner/driver submitted a Bank Guarantee dated 18th June, 2018 bearing no. 002GM03181990001 from YES Bank for release of vehicle under Section 68(3) of JGST Act, 2017 read with Section 20 of IGST Act, 2017 (Annexure-11). The Bank Guarantee was to the tune of Rs. 8,25,828/- valid upto 31st July, 2019. The validity period of Bank Guarantee was extended from 31st July, 2019 to 31st October, 2020. 7. Petitioner-company preferred an appeal in Form GST APL-01 under Section 107 of Jharkhand Goods and Services Tax Act, 2017 read with Rule 108(1) (Annexure-13). He contended that the consignment was supported by all requisite documents i.e., Tax Invoice, E-Way bill and Lorry Receipt. The EWay bill was valid till 30th June, 2018. The transaction was reported by ITC Limited in GSTR-1 return for the month of June, 2018 filed on 7th June, 2018 which evidences the bonafide of the consignor of goods. Since the transaction was reported in GSTR-1 of the consigno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner has also relied upon the amendment to Rule 138(3) of JGST Rule, 2017 carried out by notification dated 30th March, 2018 with effect from 7th March, 2018, whereunder it has been provided that where the goods are transported for a distance of less than 50 Kms. within the State or Union territory from the place of business of the consignor to the place of business of the transporter for further transportation, the supplier or the transporter may not furnish the details of conveyance in Part-B of FORM GST EWB-01. Annexure-R.A.-I is the notification no. 12/2018 dated 30th March, 2018. Based on this amendment, which was carried out before impugned proceedings were initiated, it is contended that generation of e-way bill was not required in respect of goods being transported within the State of Jharkhand for a distance of 50 Kms. From the place of business of transporter to the place of business of consignee. None of the issues of facts or law have been properly discussed and appreciated by the State Tax Officer or the Appellate Authority while imposing the impugned penalty. Lastly, it is submitted that since the GST regime is electronic based and it took time for all the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd taken note of material facts and documents borne out from the records. For proper appreciation of the issue at hand the provisions of Section 68 and 129 of JGST Act, 2017 is quoted hereunder: "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 sub-section (1) shall be validated in such manner as may be prescribed. (3) Where any conveyance referred to in sub-section (1) is intercepted by the proper officer at any place, he may require the person in charge of the said conveyance to produce the documents prescribed under the said sub-section and devices for verification, and the said person shall be liable to produce the documents and devices and also allow the inspection of goods." "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise, in such manner and within such time as may be prescribed, to recover the penalty payable under sub-section (3): Provided that the conveyance shall be released on payment by the transporter of penalty under sub-section (3) or one lakh rupees, whichever is less: Provided further 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 fifteen days may be reduced by the proper officer.]" Rule 138 of JGST Rule, 2017 which has bearing upon the case of the parties is also extracted herein below: "CHAPTER XVI E-WAY RULES [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 inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the registered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or a public conveyance, by road, the said person shall generate the e-way bill in FORM GSTEWB-01 electronically on the common portal after furnishing information in Part B of FORM GST EWB-01. (2A) Where the goods are transported by railways or by air or vessel, the e-way bill shall be generated by the registered person, being the supplier or the recipient, who shall, either before or after the commencement 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 register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter, may assign the e-way bill number to another registered or enrolled transporter for updating the information in Part B of FORM GST EWB-01 for further movement of the consignment: Provided that after the details of the conveyance have been updated by the transporter in Part B of FORM GST EWB-01, the consignor or recipient, as the case may be, who has furnished the information in Part A of FORM GST EWB-01 shall not be allowed to assign the e-way bill number to another transporter. " 11. Perusal of the impugned order dated 12th July, 2018 passed by the State Tax Officer (Annexure-10) indicates that it has only taken into consideration one out of the several plea taken by the driver/petitioner transporter of illiteracy or semi-literacy on the part of the driver in transporting the goods after expiry of validity of e-way bill. Learned counsel for the petitioner has referred to GPS tracking report for the vehicle no. HR 55 AC 8504 enclosed to their reply dated 12th July, 2018 and the columns relatable to 28th July, 2018 as to the location of the vehicle. She has pointed out that the location of the vehicle on 28th June, 2018 was varying from about 10.02 kilometres from check po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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