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2023 (7) TMI 817 - HC - GSTImposition of penalty in lieu of confiscation of the vehicle - absence of E-way bill - Intent to evade tax or not - HELD THAT - Carrying e-way bill by the transporter is a requirement under the Rules, which has the sanction of the provisions of the Act. Therefore, it cannot be said that it is the duty of the owner of the goods alone to generate e-way bill. If e-way bill is not generated by the owner of the goods, who transports such goods, it is the transporter, who has to generate e-way bill. In the instant case, it has not been done. The main argument on behalf of the petitioner is that it is not a case of evasion of tax; it is merely failure to carry the e-way bill, which is requirement of the Rules and as such is punishable under Section 164(4) of the Act or under Section 122(1)(xiv) of the Act - Penalty under Sections 164(4) and 122(1)(xiv) of the Act may not come in way of the competent officer to proceed under Section 130 of the Act, if other circumstances permit to take action under Section 130 of the Act. In the present case the intention of the petitioner is clear that the goods were being transported in the vehicle, with an intention to evade the tax - respondent authorities have shown material, which indicate and infers the intention of the petitioner, which is evasion of tax. The petitioner was transporting goods without the e-way bill, with intent to evade the tax. It attracts the provisions of Section 130 of the Act. Accordingly, an order has been passed under Section 130 of the Act, which is impugned. This Court does not see any reason to make any interference in the impugned order - petition dismissed.
Issues Involved:
1. Imposition of penalty under Section 130 of the Central/Uttarakhand Goods and Services Tax Act, 2017. 2. Requirement and generation of e-way bill. 3. Intent to evade tax as a criterion for confiscation under Section 130 of the Act. 4. Applicability of penalties under Sections 122(1)(xiv) and 164(4) of the Act. 5. Validity of the impugned order dated 07.02.2023. Summary: 1. Imposition of penalty under Section 130 of the Act: The petitioner challenged the order dated 07.02.2023 by the Assistant Commissioner, State Tax, imposing a penalty under Section 130 of the Act. The petitioner claimed to be the owner of the vehicle and contested the penalty imposed in lieu of confiscation of the vehicle, asserting he was merely a transporter and not in connivance with the owner of the goods. 2. Requirement and generation of e-way bill: The petitioner was intercepted without carrying an e-way bill. The respondents argued that the petitioner, as the transporter, was required to generate and carry the e-way bill under Rule 138A of the Rules. The petitioner contended that it was the duty of the owner of the goods to generate the e-way bill. 3. Intent to evade tax as a criterion for confiscation under Section 130 of the Act: The petitioner argued that mere failure to carry an e-way bill does not attract Section 130 unless there is an intent to evade tax. The court referred to the case of Synergy Fertichem Pvt. Ltd. v. State of Gujarat, which emphasized that intent to evade tax must be established for confiscation under Section 130. 4. Applicability of penalties under Sections 122(1)(xiv) and 164(4) of the Act: The petitioner argued that the penalty for not carrying an e-way bill should be limited to Rs. 10,000 under Section 164(4) or Section 122(1)(xiv) of the Act. The court clarified that these penalties do not exclude the operation of Section 130, which deals with confiscation. 5. Validity of the impugned order dated 07.02.2023: The court found multiple factors indicating the petitioner's intent to evade tax, including transportation without an e-way bill, incorrect route, and discrepancies in statements. The impugned order was based on these factors, and the court found no reason to interfere with it. The writ petition was dismissed. Conclusion: The court upheld the penalty imposed under Section 130 of the Act, emphasizing the requirement of an e-way bill and the intent to evade tax as valid grounds for confiscation. The writ petition was dismissed.
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