2018 (8) TMI 1142 - HC - GST

Detention of goods with vehicle - incomplete e-way bill - What are the documents to be carried along with the goods? - Held that - Under Rule 2 (1) of the Rules, the person in charge of a conveyance must carry-(a) the invoice or bill of supply or delivery challan; and (b) a copy of the e-way bill or the e-way bill number, either physically or mapped to an RFID, Radio-frequency identification (RFID) uses electromagnetic fields to automatically identify and track tags attached to objects. The tags contain electronically-stored information embedded on to the conveyance - Here, Garuda did not fill Part B of the e-way bill. It cited technical difficulties as the reason. On interception and after detention, it fulfilled that requirement. It has also pleaded that it approached the officials about the difficulties it faced, but was only advised that it must try again. Tried again, it succeeded; but by then, the authorities detained the goods. At least, thus goes the allegation. Garuda contends that its failure, if any, is trivial, technical. Can the Court exercise its discretion to dilute the statutory rigour? - Held that - Judicial Power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law - The language and the legislative intent clear, courts, in the name of discretion, cannot do violence to the statutory mandate. Discretion smooths the edges, but does not cut corners - there are no interpretative ambiguity or legislative crevasses to be filled in. Garuda can have the provisional release of the goods, pending further adjudication under Section 129(1) of the Act, only if it complies with the statutory mandate. If it provides a bank guarantee for the tax and the penalty, besides executing a bond for the value of goods, as directed under Rule 140 of the KSGST Rules, the authorities will provisionally release the goods. Once the petitioner provides the bank guarantee for the tax and penalty and bond for the value of goods, under Rule 140 of the Rules, it will have the goods provisionally released - petition disposed off.

Summary

Issues Involved:
1. Remedy available to the trader faced with detention proceedings under Section 129 of the GST Act.
2. Whether the Court can exercise its discretion to dilute the statutory rigour.

Issue-wise Detailed Analysis:

1. Remedy Available to the Trader Faced with Detention Proceedings under Section 129 of the GST Act:

The trader, a registered dealer under both the CGST and KSGST Acts, faced detention of goods due to an incomplete e-way bill. The vehicle carrying the goods was intercepted, and the Assistant State Tax Officer (ASO) issued a detention order and a subsequent demand notice for tax and penalty under Section 129(3) of the GST Act.

Statutory Scheme:
Section 129 of the GST Act provides the mechanism for detention, seizure, and release of goods and conveyances in transit. Goods can be detained if they are transported or stored contravening the Act or its rules. The detained goods can be released to the owner upon payment of applicable tax and penalty or by furnishing a security equivalent to the amount payable.

Provisional Release:
Section 67(6) and Rule 140 of the KSGST Rules allow for provisional release of seized goods upon the person executing a bond and furnishing security or paying the applicable tax, interest, and penalty.

Court's Conclusion:
The Court held that the petitioner could have the goods provisionally released pending further adjudication under Section 129(1) of the Act if it complies with the statutory mandate by providing a bank guarantee for the tax and penalty and executing a bond for the value of the goods.

2. Can the Court Exercise its Discretion to Dilute the Statutory Rigour:

The petitioner argued that the Court should exercise its discretion to dilute the statutory requirements due to the technical glitches faced while uploading the e-way bill. The petitioner contended that the failure to complete the e-way bill was trivial and did not amount to tax evasion.

Judicial Discretion:
Judicial discretion means the power given to a judge to choose among several lawful alternatives. However, this discretion is not meant to override clear statutory mandates. The Court emphasized that discretion should smooth the edges but not cut corners, and it should not do violence to the statutory mandate.

Precedential Analysis:
The Court examined various precedents where judicial discretion was exercised in similar cases. However, it concluded that the statutory provisions under Section 129 and Rule 140 are clear and must be followed. The Court cannot compel the authorities to stray from the statutory mechanism for provisional release of goods.

Final Conclusion:
The Court directed that the petitioner could have the goods provisionally released upon providing a bank guarantee for the tax and penalty and executing a bond for the value of the goods. Additionally, the petitioner could challenge the final order (Ext.P9) before the appellate authority under Section 107 of the Act.

Separate Judgments:
No separate judgments were delivered by different judges in this case. The judgment was delivered by a single judge, and the analysis and conclusions are based on the statutory provisions and precedents discussed.