TMI Blog2023 (1) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... p.m. at Amirgadh on 27.9.2018, after about expiry of 48 years. This case is squarely covered by the decision of this Court which has not been further challenged and even otherwise, from the facts which are robust in nature, it can be gathered that there does not appear to be any ill-intent on the part of the petitioner to use the expired e-Way bill. The company is situated at Howrah, West Bengal and the place of delivery was Jamnagar, Gujarat and in transit, this e-Way bill has expired. Petition allowed. - R/Special Civil Application No. 18982 of 2018 - - - Dated:- 18-1-2023 - Honourable Ms. Justice Sonia Gokani And Honourable Mr. Justice Sandeep N. Bhatt For the Petitioner(s) No. 1,2 : Mr Vinay Shraff With Mr Parth S Shah For the Respondent(s) No. 2 : Mr Siddarth Rami, AGP For the Respondent(s) No. 1 : Mr Nikunt K Raval For the Respondent(s) No. 3 : Unserved Refused (N) ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. At the time of issuance of notice on 7.12.2018 in this petition which is filed under Article 226 of the Constitution of India, this Court has passed the following order: 1. This petition challenges the constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax credit wrongly availed or utilized for any reason other than fraud or any willful misstatement or suppression of facts, and more particularly, to sub-section (8) thereof, which provides that where any person chargeable with tax under sub-section (1) or sub-section (3) pays the said tax along with interest payable under section 50 within thirty days of issue of show cause notice, no penalty shall be payable and all proceedings in respect of the said notice shall be deemed to be concluded. It was submitted that in the facts of the present case, the petitioner had deposited the amount of tax and penalty within thirty days from the date of issue of the notice and therefore, the petitioner was entitled to the benefit of sub-section (8) of section 73 of the Act. 6. Reference was also made to section 74 of the Act, which provides for determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized by reason of fraud or any wilful misstatement or suppression of facts, and more particularly, to sub-section (8) thereof, which provides that where any person chargeable with tax under sub-section (1) pays the said tax along with inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from lack of jurisdiction. 10. Having regard to the submissions advanced by the learned advocate for the petitioner, Issue Notice returnable on 10th January, 2019. Direct Service is permitted today. 2. On 13.10.2022, when the matter came up for hearing, Mr.Shah for the petitioners, on instructions, submitted that the petitioners have not pressed for the prayers at paragraphs 7(a) to 7(c) and thus, he is giving up the challenge to the vires, particularly, Rule 138(10) of the CGST Rules and GGST Rules. 3. The only prayers that survives for consideration of this Court are prayers para 7(d) and 7(e). 4. We have heard learned advocate for the petitioners who has urged that the case of the petitioners is covered by the decision of this Court in the case of Special Civil Application No.23835 of 2022 in the case of Shree Govind Alloys Pvt.Ltd. V/s State of Gujarat. It is further urged that in his case also, the way bill has expired and it appears to be bonafide and not with any fraudulent intent. 5. As the challenge to the Rule 138(10) of the CGST Rules has not been insisted, learned senior counsel Mr.Raval assisted by learned advocate urges that he has nothing to offer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) xxx xxx xxx (3) The proper officer detaining or seizing goods or conveyance shall issue a notice within seven days of such detention or seizure, specifying the penalty payable, and thereafter, pass an order within a period of seven days from the date of service of such notice, for payment of penalty under clause (a) or clause (b) of sub-section (1) (4) No penalty shall be determined under subsection (3) without giving the person concerned an opportunity of being heard. (5) On payment of amount referred in subsection( 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 such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods of the said vehicle has been detained at 6:05 p.m. at Amirgadh on 27.9.2018, after about expiry of 48 years. This case is squarely covered by the decision of this Court which has not been further challenged and even otherwise, from the facts which are robust in nature, it can be gathered that there does not appear to be any ill-intent on the part of the petitioner to use the expired e-Way bill. The company is situated at Howrah, West Bengal and the place of delivery was Jamnagar, Gujarat and in transit, this e-Way bill has expired. 8. The petition deserves to be allowed and is allowed. 9. The impugned order dated 28.09.2018 demanding a sum of Rs.63,40,000/- is quashed and set aside. 10. The order of detention as well as the further notice issued under Section 129(3) of the CGST Act in FORM GST MOV-07 is also quashed and set aside, with all consequential benefits. 11. The tax of Rs.11,41,200/- and the matching amount of penalty had been recovered, making it total of Rs.22,82,400/-. The penalty being an additional amount in wake of this quashment, the same shall be refunded to the petitioner with interest, within eight weeks. 12. Rule is made absolute to the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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