2020 (1) TMI 1286 - Commissioner - GST

Detention of goods alongwith the vehicle - defective E-way bill - evasion of GST - levy of penalty - HELD THAT - The appellants contention that the demand has been confirmed only on the basis of statement of driver is not correct. In this regard, the adjudicating authority also stated that the e-way Bill was generated intentionally by entering into the type of vehicle as 'ODC' to avail maximum timings to supplement the trips which enables the time of delivery of goods available to the transporter to 31 days in case of 'ODC' cargo as against 7 valid days in case of 'regular cargo'. Thus, the appellant has done this act deliberately and intentionally to evade the GST. Also the cargo departed from Delhi on 12.08 2018 at 11.00 A.M. whereas, the cargo intercepted by the CGST officers on 15.08.2018 at 11.50 A.M. The distance between Delhi and Jhunjhunu is about 220 km which the vehicle can cover in six hours. In this regard, the appellant could not give satisfactory reply as to how the vehicle has taken so much of time in reaching Jhunjhunu from Delhi. Three days is sufficient time for exercising second trip. The nature of the vehicle can not be changed irrespective of the goods loaded into it Any truck/vehicle can be either ODC OR REGULAR CARGO as it has been registered under Central Motor Vehicle Act, 1989. Its nature can not be changed on the basis of goods loaded into the truck - the plea of the appellant that the adjudicating authority has confirmed the demand on the basis of original trip as second trip which was not supported by any corroborative evidence is also not acceptable. Levy of penalty under Section 122(2)(b) and Section129(1)(a) - HELD THAT - The penalty is not sustainable in the light of provisions made under Section 129(5) of the CGST' Act, 2017. In view of this provision the appellant has requested to set aside the confirmation of penalty imposed under Section 122 (2) (b) and Section 122 (3) of the Act. The appellant's contention is not acceptable as the transporter has violated the provisions of Section 122 (1) (xiv) for which penalty was imposed upon the transporter M/s Rajdhani Cargo Carriers and not upon the appellant hence appellant's submission that penalty was imposed under Section 122 (2) (b) on them is not correct, The penalty on the driver of the vehicle has been imposed for violation of Section 122 (3) (b) as he was knowing that the goods carried out by him has been removed clandestinely without payment of duty. Appeal dismissed.

Summary

Issues:
1. Interpretation of E-way Bill discrepancies and intentional evasion of GST.
2. Confirmation of penalty on transporter and driver.
3. Applicability of Section 129(5) of CGST Act 2017.
4. Corroborative evidence and findings supporting the adjudicating authority's decision.

Analysis:
1. The case involved discrepancies in the E-way Bill related to a conveyance intercepted by CGST officers. The appellant deliberately entered the vehicle type as Over Dimensional Cargo (ODC) to evade GST payment. Despite depositing the IGST amount and penalty, the goods and conveyance were detained. The adjudicating authority confirmed the seizure but released the goods upon payment. The appellant challenged the order on various grounds, including lack of corroborative evidence and reliance on the driver's statement.

2. The adjudicating authority ordered the seizure of goods and imposed penalties on the transporter and the driver. The penalties were deposited and appropriated to the government exchequer. The appellant contested the penalties, citing lack of specific findings and supporting evidence. However, the penalties were upheld based on violations of specific sections of the Act by the transporter and driver.

3. The appellant invoked Section 129(5) of the CGST Act 2017 to argue for the conclusion of proceedings upon payment. However, the authority differentiated between penalties imposed on the transporter and driver, maintaining the penalties based on their respective violations. The appellant's argument regarding penalty imposition under specific sections was deemed incorrect.

4. The adjudicating authority's decision was supported by detailed findings and corroborative evidence. The authority highlighted discrepancies in the E-way Bill history, demonstrating intentional misrepresentation of the vehicle type. The nature of the vehicle cannot change based on the goods loaded, and the appellant's arguments regarding trip details and route selection were refuted. The appeal was rejected, and the authority's order was upheld based on the established facts and legal provisions.

In conclusion, the judgment addressed the intentional evasion of GST, penalties imposed on the transporter and driver, the applicability of relevant legal provisions, and the importance of corroborative evidence in supporting the authority's decision.