2018 (11) TMI 1344 - HC - GST

Penalty u/s 129 of GST Act - transport at the behest of an individual, an unregistered person - interstate supply of more than ₹ 50,000/- value - E-way bill - the temporary registration at Pondicherry - compensation cess is seen collected at 20% instead of 25%. Held that - Sub-rule (2) of Rule 138 compels the registered person , as a consignor or as a consignee, to generate the e-way bill. If he does not generate e-way bill and hands over the consignment to a transporter, sub-rule (3) applies the registered person as the consignor upload the information about the transporter in the common portal. And that transporter must, then, generate the e-way bill. Here, Mohan is not a registered person, nor is he dealing in the cars-he is a consumer - the Ext.P3 is only a document witnessing transport of a pre-owned vehicle-rather than a vehicle whose sale could not be completed until it was delivered at its destination-at the instance of an unregistered person. Does the statutory mandate under section 129 of the GST Act admit of any discretion to let the affected party pay a reduced amount of tax and penalty pending further adjudication, for having the interim custody of the detained goods? - Held that - Division Bench in Indus Towers 2018 (7) TMI 1181 - KERALA HIGH COURT has held that if the conditions under the Act and Rules are not complied with, definitely Section 129 operates and confiscation would be attracted. The respondents are entitled to adjudication, but they would have to prove that the goods being transported stand exempted from the rigours of the GST regime. I fail to persuade myself that I can take a different course from what has been judicially mandated in Indus Towers, for that case-holding squarely binds me. As a matter of abundant caution, I reiterate that I have not touched on the merits; nor should the authorities construe this judgment as expressing any view on the petitioners claims and contentions. The matter, as I have observed, concerns, interim custody of the goods. Section 129 and other provisions of the Act the Rules prescribe the procedure for that purpose. Either petitioner can get the goods released by complying with section 129 and the relevant rules, and seek an early adjudication of the dispute.

Issues Involved:

1. Applicability of statutory limitations on transport by an unregistered person.
2. Applicability of the second proviso to subrule (3) of Rule 138 of the KSGST Rules.
3. Classification of the car as "used personal and household effects."
4. Interim release of detained goods under Section 129 of the GST Act.

Issue-wise Detailed Analysis:

1. Applicability of statutory limitations on transport by an unregistered person:

The court examined whether the transport at the behest of an unregistered individual should suffer the same statutory limitations as transport by a registered person or transporter. The petitioner argued that since Mohan, the purchaser, was an unregistered person, the GST regime should not apply to him. The court noted that Mohan, as an unregistered person, was transporting the car and thus, the statutory limitations under the GST Act were applicable. The court emphasized that the statutory mandate is clear and does not admit of any adjudicatory discretion to scale down either the tax or penalty as an interim measure.

2. Applicability of the second proviso to subrule (3) of Rule 138 of the KSGST Rules:

The court analyzed whether the second proviso to subrule (3) of Rule 138 of the KSGST Rules, which allows an unregistered person to generate an e-way bill, applied to this case. The court observed that Mohan, an unregistered person, entrusted the car to the company for transportation. The company issued an invoice and collected transport charges, indicating an interstate supply. The court concluded that the transaction was an interstate supply, and the company should have generated an e-way bill. The court noted that the petitioners had an effective remedial measure of appeal and that any observation at this stage might prejudice their case.

3. Classification of the car as "used personal and household effects":

The petitioners contended that the car should be classified as "used personal and household effects," exempting it from the requirement of an e-way bill. The court examined Rule 138(14) and the annexure listing items exempt from the e-way bill requirement, including "used personal and household effects." The court noted that the term "used" implies prior ownership, which was not the case here, as the car was newly purchased. The court refrained from ruling on this aspect, leaving it to the authorities to decide whether the petitioners could take advantage of Rule 55A, which allows carrying other documents instead of an e-way bill.

4. Interim release of detained goods under Section 129 of the GST Act:

The court discussed the grounds of detention under Section 129 of the GST Act, which mandates the detention of goods transported without an e-way bill. The court referred to precedents, including the Division Bench's judgment in Indus Towers Limited, which held that non-compliance with the Act and Rules attracts detention and confiscation under Section 129. The court emphasized that the statutory mechanism for provisional release of goods should be followed, and the petitioners could secure interim custody of the goods by complying with Section 129 and relevant rules. The court noted that the petitioners could seek early adjudication of the dispute and assail the statutory notice at higher administrative echelons.

Conclusion:

The court held that the petitioners could get the goods released by complying with Section 129 and relevant rules and seek early adjudication of the dispute. The judgment emphasized that the statutory mandate under Section 129 does not admit of any discretion to let the affected party pay a reduced amount of tax and penalty pending further adjudication. The court deferred to legislative wisdom and did not touch on the merits of the petitioners' claims and contentions. The judgment allowed the petitioners to follow the statutory procedure for interim custody of the goods and seek redress through the administrative adjudicatory mechanism.

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