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TMI Blog2022 (12) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... for being taken up on 08.12.2022, it was listed in the Admission Board on 08.12.2022, Mr.B.Raveendran, learned counsel on record for writ petitioner started making submissions in the presence of Mr.T.N.C.Kaushik, learned Additional Government Pleader (Taxes) and the matter was kept in the Admission Board for further hearing today. 2. To be noted, captioned writ petition has been filed assailing 'proceedings dated 02.12.2022, bearing reference GDN No.4554/22-23/OR No.4554/22-23' [hereinafter 'impugned proceedings' for the sake of brevity, convenience and clarity] made by the respondent. 3. The impugned proceedings have been made under Section 129(3) of 'The Central Goods and Services Tax Act, 2017' [hereinafter 'C-G&ST Act' for the sake of brevity, convenience and clarity] read with 'The State/Union Territory Goods and Services Tax Act, 2017' [hereinafter 'State/Union Territory G & ST Act' for the sake of convenience and Clarity] besides Section 20 of 'Integrated Goods and Services Tax Act, 2017' [hereinafter 'Integrated G & T Act' for convenience]. 4. Short facts are that a truck bearing Registration No.TN28-AQ-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.' To be noted, Padma Sundara Rao case was rendered by Hon'ble Constitution Bench and therefore is not just a ratio but declaration of law by Hon'ble Supreme Court. 8. Today, learned Revenue counsel submits that the respondent is the proper Officer qua the aforesaid proceedings and it passed an order yesterday for payment of penalty of Rs.6,76,764/-. 9. In the normal circumstances, the sequitur would have been the writ petition would have become infructuous but the order came to be made when the writ petition was being actively heard by this Court. However, to be fair to the respondent it should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-way bill had expired. 5. Adverting to 'Goods and Services Tax Rules, 2017' [hereinafter 'said Rules' for the sake of convenience] being substantive legislation under C-G & ST Act, learned counsel for writ petitioner pointed out that Rule 138 and more particularly, 138(10), the second and third provisos thereat provide for extension of validity of period of e-way bill within 8 hours from the time of expiry. Learned counsel for writ petitioner submitted that the validity of the e-way bill qua aforementioned consignment elapsed at 23.59 hours on 01.12.2022 and at the time of interception, 8 hours therefrom had not elapsed. 6. Learned counsel for writ petitioner submitted that on interception and detention, the portal was blocked and therefore, the extension of e-way bill could not be done though the writ petitioner had a good four hours from the time of detention. 7. Learned Revenue counsel brought to the notice of this Court an order dated 25.08.2022 made in W.P.Nos.18753 of 2022 and etc., batch and submitted that in cases of this nature, the owner of the consignment should come before writ Court and not the transporter. On a perusal of the order, it comes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned Writ Miscellaneous Petitions are ordered as prayed for. 3. Registry to carry out necessary and consequential amendments in the main writ petition (W.P.No.32960 of 2022) by today and list W.P.No.32960 of 2022 and W.M.P.Nos.32360 & 32361 of 2022 in the Admission Board i.e., Motion List tomorrow. List on 13.12.2022.' 4. The aforementioned proceedings are tell-tale. The proceedings also capture the trajectory the matter has taken thus far. 5. Aforementioned proceedings shall be read as an integral part and parcel of this order and therefore short forms and abbreviations used in the earlier proceedings shall continue to be used in the instant order also. 6. As facts have already been captured in 09.12.2022 proceedings, it is not necessary to dilate on the same again. 7. It emerges from submissions that only two points arise for consideration and they are: a) break down of the truck carrying consignment, repair and consequent delay; b) portal being blocked without access to renew E-way bill though four more hours to do so was available at the time of interception of truck. 8. To be noted, post amendment 'order dated 08.12.2022 bearing reference GDN No.4554/22-23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would now be available in GSTR1 for the department. Example 2: A conveyance carrying the goods from a factory of fertilizers is delivering the same at various locations as directed by the department of Agriculture. The goods are accompanied by invoice or invoice with delivery challan and E-way bill. The E-way bill has expired due to delay in making delivery at various locations. The expiry of E-way bill does not create any scope for evasion. In cases as in the examples, penalty of upto Rs.5000/- per Act shall be levied.' 13. In the instant case, from the narrative thus far, it comes closest to Example 2. It is reiterated and clearly articulated in Example 2 that the expiry of E-way bill does not create any scope for evasion. Absent evasion, there can be no revenue loss. It has been made clear that in cases of such nature penalty upto Rs.5,000/- per act shall be levied. This may have to be read with Section 125 of C-G & ST Act, which is residuary in nature qua penalties which do not find a place in the adumbration of (xxi) categories in sub-section (1) of Section 122. 14. In the light of the narrative, discussion and dispositive reasoning thus far, on a demurrer, assumin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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