9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 1512 - Commissioner - GSTDetention/seizure of goods and conveyance in transit - E-way bill was incomplete inasmuch as Part-B of E-way Bill was not filled/completed in gross negligence - violation of provisions of Section 68 of CGST/HGST Act, 2017 and Rule 138 of CGST/HGST Rules, 2017 read with Section 20 of IGST Act, 2017 - HELD THAT - From perusal of Section 68 of Haryana GST Act, it is clear that the government is empowered from in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed - As per Rule 138 of the Rules, 2017, any registered person who causes movement of goods or assignment valuation exceeding ₹ 50,000/- must upload the information in a shape of e-way bill containing Part-A and Part-B. The appellant violated the provisions of Section 68 of the Act ibid and Rule 138 of the Rules. In any tax administration the provisions for Inspection, Search, Seizure and Arrest are provided to protect the interest of genuine taxpayers (as the tax evaders, by evading the tax, get an unfair advantage over the genuine taxpayers) and as a deterrent for tax evasion. These provisions are also required to safeguard Government s legitimate dues. Thus, these provisions act as a deterrent and by checking evasion provide a level playing field to genuine taxpayers - The statutory scheme is that Chapter XVI of the combined Acts deals with inspection, search, and seizure. Section 129 under Chapter XIX of the Acts provides the mechanism for detention, seizure, and release of goods and conveyances in transit. It begins with a non obstante clause and goes on to lay down the procedure. If any person transports or stores any goods contravening this Act or its rules, all those goods and means of transport and documents relating to those goods and conveyance will be detained or seized. In the present case, the Proper Officer, Panchkula has imposed penalty on the ground that the goods in question were being transported without any proper and genuine document. The presumption was drawn in the matter for violation of law by not fill up the part-B of the E-way Bill in question. The checking officer has not considered the factual aspect of the matter before holding that there was violation of law. The documents produced by the driver-cum-person in-charge of the goods at the time of checking of the goods under dispute do not indicate that any attempt was made to evade tax. Record of case indicates that all the material particulars and information which were required and available in the documents, before issuing detention memo i.e. MOV-06 on 2-5-2018 by the Proper Officer, hence, no mala fide intention are proved or established. Under these circumstances, the question is whether penalty can be imposed only on the basis without establishing of mens rea or not for violation of law or attempt to evasion of tax. If the facts and circumstances of the present case are evaluated in the backdrop of the aforesaid principles laid down by the Hon ble Supreme Court in the case of matter of imposition of penalty, it would be seen that in the present case, penalty has been imposed mechanically without any dishonest intention or malice or mens rea having been established or proved. The impugned order dated 4-5-2018, imposing tax and penalty under Section 129(3) of the HGST/CGST/IGST Acts upon the appellant is hereby set aside. However, a penalty of ₹ 5,000/- imposed under Section 125 of the IGST/CGST Act for not mentioning the proper detail in the documents (i.e. E-way Bill) - Appeal allowed.
Issues Involved:
1. Delay in filing the appeal. 2. Non-compliance with procedural requirements for filing an appeal. 3. Validity of the detention and seizure of goods due to incomplete E-way bill. 4. Imposition of tax and penalty without establishing intent to evade tax. 5. Application of precedents and legal principles in the imposition of penalties. Detailed Analysis: 1. Delay in Filing the Appeal: The appellant filed the appeal on 13-8-2018, which was nine days late beyond the 90-day period stipulated under Section 107 of the IGST/CGST Act. The appellant submitted an application for condonation of delay, which was accepted, and the delay was condoned. 2. Non-compliance with Procedural Requirements: The appellant initially submitted the original copy of the impugned order along with the appeal document instead of a certified copy as required. However, the appeal was entertained as the original copy was available, and the procedural requirement was deemed fulfilled. 3. Validity of the Detention and Seizure of Goods: During a roadside check on 1-5-2018, the goods were detained because Part-B of the E-way bill was not filled. The Proper Officer issued a detention order in FORM GST MOV-06 on 2-5-2018. However, the appellant had completed Part-B of the E-way bill on 1-5-2018 at 08:55 AM, prior to the issuance of the detention memo. The case was compared to the judgment in "Modern Traders v. State of UP," where it was held that goods cannot be seized if the E-way bill is generated before the seizure order is passed. The Proper Officer's failure to issue the detention memo at the time of interception and the completion of Part-B before the memo rendered the detention and seizure invalid. 4. Imposition of Tax and Penalty Without Establishing Intent to Evade Tax: The Proper Officer imposed a tax of ?70,454/- and an equal amount of penalty under Section 129(1)(a) of the HGST/CGST Acts. The appellant argued that the imposition was arbitrary and without establishing any intent to evade tax. The judgment referenced the Supreme Court's principle in "Hindustan Steel Ltd." that penalty should not be imposed unless there is a deliberate defiance of law or dishonest conduct. The appellant's failure to fill Part-B was a procedural lapse without any intention to evade tax. The Proper Officer did not establish mens rea or any attempt to evade tax, making the imposition of penalty unjustified. 5. Application of Precedents and Legal Principles: The appellant cited precedents, including "Modern Traders v. State of UP" and "Axpress Logistics India Pvt. Ltd. v. Union of India," where it was held that goods cannot be seized if the E-way bill is generated before the seizure order. The Proper Officer's actions were found to be in violation of these precedents. Additionally, the judgment emphasized that mere procedural infractions without intent to evade tax do not warrant detention or seizure under Section 129. Conclusion: The impugned order dated 4-5-2018, imposing tax and penalty, was set aside. The Proper Officer's actions were found to be arbitrary and without jurisdiction. However, a penalty of ?5,000/- was imposed under Section 125 of the IGST/CGST Act for not mentioning proper details in the E-way bill. The appeal was accepted, and the order was issued in Form GST APL-04.
|
