TMI Blog2022 (11) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the contention raised by the petitioner. It suffers from violation of principles of natural justice. The statements made at para-11 of the counter affidavit by the respondent regarding the mismatch in the quantity of goods with the Invoices are not substantiated by the physical verification report issued by the department in Form GST MOV- 04 (Annexure-7). The impugned action has entailed penalty without due consideration of the plea raised by the petitioner and without proper application of mind. As such, both the orders passed by the State Tax Officer (Annexure- 10) dated 12th July, 2018 and the appellate order dated 26th July, 2018 (Annexure-14) are set aside - the matter is remanded to the State Tax Officer to consider the plea raised by the petitioner in its reply and the plea based upon the amended Rule 138(3) of JGST Rules, 2017 brought into force with effect from 7th March, 2018 by notification dated 30th March, 2018, in accordance with law. Petition allowed by way of remand. - W.P.(T) No. 4654 of 2019 - - - Dated:- 13-6-2022 - Mr. Aparesh Kumar Singh and Mr. Deepak Roshan, JJ. For the Petitioner : M/s. Shilpi Sandil Gadodia, Aanya, Ranjeet Khushwaha, Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consignment. For the safe custody of the consignment, the impugned consignment was taken back to their premises at Bhilaipahari which is only about 15 Kms away from the warehouse of ITC Limited at Asanbani, Jamshedpur. Further, upon availability of space at the warehouse on 5th July, 2018, the driver was informed to park the vehicle. While vehicle was in transit from their facility to the warehouse of ITC Limited, it was intercepted and detained on the allegation of expiry of e-way bill. Petitioner contended that apart from the allegation of expiry of e-way bill in the physical verification report (Annexure-7) dated 7th July, 2018, there was no allegation of any tax evasion or the vehicle carrying the goods had any illegal documents to doubt the genuineness of the bills in respect of which tax was already paid. Petitioner also took a plea that expiry of e-way bill was caused due to ignorance on the part of the illiterate/semi-literate driver who was yet to get familiarize with the requirements under the GST Laws. Petitioner also annexed GPS Report for the period 28th June, 2018 till 5th July, 2018 in support of its case that the vehicle was standing at their premises. 5. Impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned consignment was taken back to their premises at Bhilaipahari which is only about 15 Kms away from the warehouse of ITC Limited at Asanbani, Jamshedpur. Upon availability of space at the ITC warehouse, on 15th July, 2018, the driver was informed to park the vehicle. While vehicle was in transit from their facility to the warehouse of ITC Limited, it was intercepted and detained on the allegation that E-way bill has expired. Petitioner also enclosed GPS report to this appeal petition in support of the plea that from 28th June, 2018 till 5th July, 2018 the vehicle was standing at their premises. Based on this plea and relying upon Section 122 (3) (c) and Section 125 of CGST Act, it was contended that there was no intention to evade any taxes. 8. Learned counsel for the petitioner submits that State Tax Officer and appellate authority both have failed to examine the case of the petitioner on facts after due verification of GPS report which conclusively show that the vehicle had reached the consignor s destination at ITC warehouse, Asanbani, Jamshedpur on 28th June, 2018 before expiry of E-Way bill on 30th June, 2018 and since 28th June, 2018 it was standing at the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GST Act. 9. Learned counsel for the respondent has opposed the contention. He has relied upon the physical verification report in Form GST MOV-04 (Annexure- 7) dated 7th July, 2018, the notice issued in Form GST MOV-07 (Annexure-8) upon the driver and also the impugned order dated 12th July, 2018 passed by the State Tax Officer (Annexure-10). He has also referred to the findings of the Appellate Authority at Annexure-14 dated 26th July, 2019. Learned counsel for the respondent has also referred to the contents of the counter affidavit. However, he has not been able to show any mismatch in the physical verification report (Annexure-7) as contended at Para-11 of the counter affidavit in the quantity of goods vis- -vis the invoices. Learned counsel for the respondent has also not been able to show from the impugned order of State Tax Officer (Annexure-10) and also the appellate order (Annexure-14) that the contention of the petitioner relying upon GPS Reports have been dealt with upon due verification. However, he submits that since the transportation of goods of consigner from ITC Limited, Howrah in the State of West Bengal to its warehouse at Asanbani, Jamshedpur was being undert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempted goods, on payment of an amount equal to two per cent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such penalty; (b) on payment of penalty equal to fifty per cent of the value of the goods or two hundred per cent of the tax payable on such goods, whichever is higher, and in case of exempted goods, on payment of an amount equal to five per cent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such penalty;] (c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. [(2) The provisions of sub-section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances.] [(3) The proper officer detaining or seizing goods or conveyance shall issue a notice within seven days of such detention or seizure, specifying the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generated on the said portal: Provided further that where the goods to be transported are supplied through an ecommerce operator or a courier agency, on an authorization received from the consignor, the information in Part A of FORM GST EWB- 01 may be furnished by such ecommerce operator or courier agency 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 registered, irrespective of the value of the consignment: Provided also that where handicraft goods are transported from one State or Union territory to another State or Union territory by a person who has been exempted from the requirement of obtaining registration under clauses (i) and (ii) of section 24, the e-way bill shall be generated by the said person irrespective of the value of the consignment. [Explanation 1. For the purposes of this rule, the expression―handicraft goods has the meaning as assigned to it in the Government of India, Ministry of Finance, notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 where the goods are transported for a distance of upto fifty kilometers 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 recipient, or as the case may be, the transporter may not furnish the details of conveyance in Part B of FORM GST EWB-01. Explanation 1. For the purposes of this sub-rule, where the goods are supplied by an unregistered supplier to a recipient who is registered, the movement shall be said to be caused by such recipient if the recipient is known at the time of commencement of the movement of goods. Explanation 2.- The e-way bill shall not be valid for movement of goods by road unless the information in Part- B of FORM GST EWB-01 has been furnished except in the case of movements covered under the third proviso to sub-rule (3) and the proviso to sub-rule(5). (4) Upon generation of the e-way bill on the common portal, a unique e-way bill number (EBN) shall be made available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of e-way bill and on account of paucity of space for the next seven days, it was standing at one location i.e, the warehouse of the petitioner /transporter at Bhilaipahari. This fact has not been verified by the State Tax Officer or by the Appellate Authority, which has vitiated the impugned orders on facts. 12. It is true that neither the State Tax Officer nor Appellate Authority has examined the plea raised by the petitioner based on GPS tracking report of the vehicle. The impugned orders have been passed without taking into consideration the explanation and defence taken by the petitioner in their reply before the Tax Officer in response to the show-cause notice under GST MOV 07. The State Tax Officer has only taken into consideration one of the plea that the driver was illiterate/semi-literate and did not realize the consequences of expiry of e-way bill. The impugned order also does not reflect due consideration of plea taken by the petitioner based on GPS tracking report of the vehicle. The impugned orders therefore have been passed without proper application of mind and without dealing with the contention raised by the petitioner. It suffers from violation of princi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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