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TMI Blog2024 (7) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... en up for final consideration. 2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs. "(a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner case and after going into the validity and legality thereof quash and set aside impugned order dated 12.03.2021 (ANNEXURE "A"); (b) that this Hon'ble Court may be pleased to issue Any writ, order or direction more particularly in the nature of a Writ of Declaration to declare and hold that section 129 of the CGST and Gujarat GST Act, 2017 is arbitrary and violative of Article 14 of the Constitution and pass such further or other orders as this Hon'ble Court may deem fit and necessary in the facts and circumstance of the case and thus render justice; (c) that this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction, directing the Respondent to allow the Halol unit of the Petitioner the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged order of demanding penalty and tax by preferring appeal before the appellate authority under Section 107 of the GST Act which was dismissed confirming order of tax and penalty vide impugned order dated 12th March, 2021. 4. Being aggrieved, the petitioner has preferred this petition with the aforesaid prayers. 5. Learned advocate Mr. Bharat Raichandani for the petitioner submitted that there was a minor lapse in Part B of the E-way bill. It was submitted that the Order-in-Original in Form MOV-09 is passed without assigning any reason. 5.1 It was submitted that respondent No. 2 could not have imposed tax or penalty as the goods were moved from head office to plant of the petitioner which is also evident from the E-invoice dated 29th October, 2020 which clearly shows that the goods are transported from the petitioner company only to its Halol Plant. 5.2 It was submitted that there was procedural lapse in Part B of the E-way bill which is curable and does not impact any tax liability as per Rule 138 of the Central/Gujarat Goods and Service Tax Rules, 2017 (for short 'the Rules'). 5.3 It was submitted that the invoices were changed in relation to the goods transported through T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent authority to assign any reason for imposing penalty and interest which is leviable under Section 139 of the GST Act read with Rule 138 of the Rules. 7. Having heard learned advocates for the respective parties, it is apparent from both the impugned order of levy of interest in MOV-09 as well as appellate order that no reasons are assigned for levying interest and penalty. Section 122 of the GST Act provides for levy of penalty. Sub-clause (14) of Section 122 provides for transportation of any taxable goods as may be specified in this behalf, levy of penalty is only Rs.10,000/-. Section 122(1)(xiv) read as under. 122. Penalty for certain offences. (1) Where a taxable person who- (i) to (xiii) ... ... ... (xiv) transports any taxable goods without the cover of documents as may be specified in this behalf; he shall be liable to pay penalty of Rs. 10,000/- or an amount equivalent to tax evaded or tax not deducted under Section 51 or short deducted or deducted but not paid to the Government or not collected under Section 52 or short collected or collected but not paid to the Government or input tax credit availed of or passed on or distributed irregularly, or the refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in case of Shree Govind Alloys Pvt. Ltd. (supra), the respondent had challenged the authority of the respondent demanding the tax and penalty under Section 129 (3) of the Central Goods & Services Tax Act, 2017, where the goods, which were to be delivered on or before 17.10.2022, could not be delivered in time and on 19.10.2022 when inspected, some of the e-Way bill numbers had shown expired. The entire truck along with the goods had been seized on account of expiration of the e-Way bill. Therefore, the Court had, after a detailed consideration, held that e-Way bill had expired 41 hours before and the release of goods of conveyance and transit through the authority concerned. Relevant observations are made in paragraphs 6 to 10 are as under : "6. We have heard learned advocates on both the sides and also have considered the material on the record. We notice section 129, which provides as under: 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 contravention of the provisions of this Act or the rules made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the transporter of penalty under subsection93) 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 deprecate in value with passage of time, the said period of fifteen days may be reduced by the proper officer." 7. It is not in dispute that in the instant case, e-Way Bill had expired 41 hours before and the release of goods of conveyance and transit through the authority concerned. 8. We could notice that the detention is also on the ground that the goods are of expiration of the E-way bill number, which had expired during the transit and the same cannot be the ground for detaining and seizure of M.S. Billet along with the vehicle truck. 9. This Court in Govind Tobacco Manufacturing Co. vs. State of U.P., [2022] 140 taxmann.com 383 (Allahabad) has held that as there is expiry of E-way bill on transit, the seizure of said vehicle and the goods is not permissible under the law. In the case before the High Court of Madhya Pradesh at Jabalpur in M/s. Daya Shaker Singh vs State of Madhya Pradesh passed in Writ Petition No. 12324 of 2022 on 10.08.2022, where also the Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise to pay tax and penalty and the quantum of tax payable by the petitioners. A perusal of the impugned order dated 2.4.2019 passed by the second respondent in FORM GST MOV-09 whereby tax and penalty have been demanded, reveals that the basis for computing the additional tax is the IGST paid by the petitioners. Moreover, in the impugned order there is not even a whisper as regards the submissions advanced on behalf of the petitioners, nor have the same been dealt with in the body of the order. No reasons have been assigned by the second respondent for the purpose of holding the petitioner liable to payment of tax and penalty despite the fact that IGST had already been paid on such transaction and the goods were being moved from the customs warehouse to the petitioner's own godown and it being the case of the petitioners that there was no supply, and hence, the provisions of GST Act are not applicable. The impugned order is, therefore, totally bereft of any reasoning. Reasons, it is well known, are the heart and soul of an order passed by a judicial/quasi-judicial order, without which it is difficult to pronounce one way or other as regards the validity of such order. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate for the petitioner, namely, that IGST has already been paid on the goods in question and that there is no transaction of supply in the present case and any other submission that may be made before the second respondent. Rule is made absolute accordingly to the aforesaid extent. Direct service is permitted." 8.5 In case of Varun Beverages Ltd. v State of U.P. reported in 2023 (71) G.S.T.L. 4 (All.), it was held by the Allahabad High Court as under. "7. The sole controversy engaging the attention of the Court is as to whether the wrong mention of number of Vehicle No. HR73/6755 through which the goods were in transit and detained by the taxing authorities would be considered as a human error and will be covered under the circular No. 41/15/2018-GST dated 13.04.2018 and 49/23/2018-GST dated 21.06.2018, as the number mentioned in the E-way bill was UP-13T/6755 and the mistake is of only of HR-73 in place of U.P.-13T. 8. It is not in dispute that goods were being transported by the dealer through stock transfer from its unit at Gautam Buddha Nagar to its sale depot at Agra. The bilty which is the document of the transporter mentions the vehicle number as HR-73/6755. From ..... X X X X Extracts X X X X X X X X Extracts X X X X
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