2024 (5) TMI 1315 - HC - GST

Maintainability of petition - availability of alternative remedy - Recalling and/or cancelling and/or rescinding the penalty imposed u/s 129 (3) of the West Bengal Goods and Services Tax Act, 2017 - HELD THAT - The E-way bill therefor, did not contain the particulars as prescribed under Rule 55 of the CGST Rules and the WBGST Rules. The delivery challan is also not in conformity with such Rules. This gave rise to a doubt in the mind of the Revenue that the E-way bill was issued by an URP without mentioning the name of M/s. B.G. Enterprise from whom such JCB was released to conceal the actual transaction of the facts. It is, therefor, apparent according to the Revenue that the JCB was used by M/s. B.G. Enterprise to supply some services to some concealed person and was released by him for taking possession of such goods directly by the writ petitioner - In Revenue jurisprudence, it is well-settled that the assessee/registered person is required to provide documents in case of any issue raised by the Revenue for necessary clarification. It was therefor, incumbent upon the petitioner to produce documents as discussed hereinabove to clarify the situation. Having not done so, the petitioner cannot fall back and say that the order impugned is bad in law or without jurisdiction. On the contrary, the bona fide of the petitioner is in doubt and the presumption of withholding relevant documents by the petitioner is also substantiated. Jurisdiction - contention of petitioner is that the order impugned is without jurisdiction as the Revenue u/s 129 of the WBGST Act does not possess the jurisdiction to assess tax - HELD THAT - In absence of the transaction being showed as an exempted one, the Revenue has no other option to compute the penalty. In order to compute the applicable penalty, the Revenue has taken the value of the JCB to be Rs. 27,000,00/-. The petitioner has also produced no documents to dispute such figure but only says that tax cannot be assessed which is an incorrect interception of the provisions of Section 129 of the WBGST Act - there are no infirmity in such computation. It is also not found that the order impugned has been passed without following any direction given in the order dated 1st February, 2024. The impugned order is a reasoned one passed after affording the writ petitioner a fresh hearing. Maintainability of writ petition - HELD THAT - The petitioner is given the benefit as it has contended that the order impugned is without jurisdiction. It is well-settled principle of law that alternative remedy is not an absolute bar for filing a writ petition particularly when the order is assailed as one without jurisdiction. It is also not in doubt that stricto sensu an assessee/registered person cannot shirk from his responsibility of complying with the requirement of law to produce valid documents required under the Act and the rules framed thereunder on the consignment being intercepted - The same treatment is not available to the writ petitioner in the facts of the instant case. The writ petition is accordingly dismissed.

Summary

Issues Involved:
1. Jurisdiction of the Adjudicating Authority.
2. Compliance with Court's directions.
3. Validity of E-way bill and delivery challan.
4. Assessment of tax and imposition of penalty.
5. Maintainability of the writ petition.

Summary:

I. Jurisdiction of the Adjudicating Authority:
The petitioner argued that the impugned order was without jurisdiction as it did not follow the directions given by the Court in its order dated 1st February, 2024. The Adjudicating Authority allegedly reiterated its previous order mechanically, contrary to the Court's spirit. The petitioner also contended that the Adjudicating Authority lacked authority to assess tax evasion during the transit of the JCB and impose a penalty.

II. Compliance with Court's Directions:
The petitioner claimed that the Adjudicating Authority ignored the Court's directions and passed the impugned order in violation of the judgment dated 1st February, 2024. The petitioner argued that the order was illegal, erroneous, and arbitrary.

III. Validity of E-way Bill and Delivery Challan:
The petitioner maintained that the JCB was transported under a valid E-way bill, and all relevant details were available on the portal. The delivery challan, which was not produced at the time of interception, was subsequently provided. The petitioner argued that there was no mismatch between the E-way bill and the delivery challan, and thus, no grounds for detention and penalty.

IV. Assessment of Tax and Imposition of Penalty:
The Revenue argued that the vehicle was intercepted without the required documents as per Rule 138A of the WBGST Rules, leading to its detention. The petitioner failed to produce necessary documents, including the acquisition price of the JCB, its depreciated value, or rental income. The Revenue assessed the reasonable value of the JCB and computed the penalty accordingly. The Revenue contended that the petitioner did not clarify the situation or produce relevant documents, leading to the presumption of tax evasion.

V. Maintainability of the Writ Petition:
The Revenue argued that the writ petition was not maintainable due to the availability of an alternative remedy in the form of an appeal u/s 107 of the WBGST Act. However, the Court inclined to give the petitioner the benefit, considering the contention that the order was without jurisdiction.

Decision with Reasons:
The Court found that the petitioner did not produce sufficient documents to clarify the situation or demonstrate that there was no tax evasion. The impugned order was deemed to be a reasoned one, passed after affording the petitioner a fresh hearing. The Court dismissed the writ petition, stating that the petitioner failed to comply with the requirements of law and produce valid documents when the consignment was intercepted. The Court also noted that the judgments relied upon by the petitioner did not apply to the facts of the case.

Conclusion:
The writ petition was dismissed, and the impugned order was upheld as it was passed in compliance with statutory provisions and after considering the petitioner's submissions. The Court emphasized the importance of producing valid documents during the interception of consignments and clarified that alternative remedies should be pursued unless the order is without jurisdiction.