2024 (5) TMI 1372 - HC - GST

Determination of tax and penalty - original tax invoice not carried while transporting goods - Rule 138-A of the SGST and Section 68 of the CGST - HELD THAT - Reliance placed on the decision of this Court in M/S. DIVYA JYOTHI PETROCHEMICALS CO., VERSUS THE JOINT COMMISSIONER OF COMMERCIAL TAXES APPEALS, DHARWAD, THE COMMERCIAL TAX OFFICER (ENFORCEMENT) , MADHUGIRI, THE REGISTRAR, KARNATAKA APPELLATE TRIBUNAL BENGALURU 2024 (3) TMI 549 - KARNATAKA HIGH COURT . In support of his contention that the petition is liable to be allowed. In M/s Divya Jyothi Petrochemicals Co. a similar contention was raised by the petitioner therein. The same was considered in the light of the Rule 138-A of the SGST and Section 68 of the CGST and Rule 48 of the CGST and an opinion was formed that as per Rule 48(1)(b) of the CGST, it is only the duplicate copy which is meant for transporter and the triplicate copy is meant for supplier as per clause (c). It is therefore, held that the transporter is not required to carry the original tax invoice, but the law mandates him to carry the duplicate copy. There are no reason to form a different opinion. Under such circumstances, it is the contention taken by respondents that the petitioner is liable to pay tax and penalty, as the transporter had not carried the original tax invoice cannot be accepted. It is stated that petitioner is levied with the double tax as he is already paid tax as required to be paid and once again he was compelled to pay tax with penalty and therefore, the same is liable to be refunded. Petition allowed.

Summary

Issues involved:
The judgment involves the legality of imposing tax and penalty on a petitioner for not carrying the original tax invoice while transporting goods, as per Rule 138-A of the SGST and Section 68 of the CGST.

Summary:

Issue 1: Imposition of Tax and Penalty
The petitioner, a partnership firm registered under Goods and Services Tax Law, was transporting bitumen in heat insulated containers for subsequent sale. The Enforcement Officer intercepted the vehicle for not carrying the Original Tax Invoice, leading to the imposition of tax and penalty as per Annexure-D dated 01.10.2021.

Issue 2: Legal Basis for Imposition
The petitioner contended that the tax demanded was paid, but the first appellate authority upheld the penalty under Section 129(3) of the CGST Act, citing the absence of the original tax invoice as specified under Section 68 of the CGST.

Issue 3: Interpretation of Laws
The petitioner argued that neither the SGST Act nor the CGST Act mandates carrying the Original Tax Invoice by the transporter. Rule 48 of the CGST specifies that only the duplicate copy is required to be carried during transit, not the original invoice.

Issue 4: Precedent and Legal Opinion
Citing a previous court decision, the petitioner emphasized that the transporter is only obligated to carry the duplicate copy, not the original tax invoice. The court agreed that the law does not require the transporter to carry the original invoice, leading to the quashing of the orders imposing tax and penalty.

Conclusion:
The court allowed the writ petition, quashed the orders dated 01.10.2021 and 30.11.2021, and directed the respondents to refund the excess tax and penalty paid by the petitioner within three months. The judgment clarified that the transporter's failure to carry the original tax invoice did not justify the imposition of additional tax and penalty.