2024 (3) TMI 743 - HC - GST

Levy of penalty u/s 129 (3) of the GST Act - appellant/petitioner did not generate e-Way Bill with a view to evade tax - violation of provisions of the GST Act read with GST Rules - HELD THAT - The e-Invoice in Form GST Invoice-I is auto populated / generated on the common platform after e- Invoice is uploaded on the said portal in the manner prescribed in the said Rules. Further Part-B of the e-Way bill has been uploaded after filing up the relevant details of the vehicle transporting the goods. In the facts of this case it is not disputed that the e-Way Bill contained the complete details in Part-A and Part-B. Most importantly once these documents are produced, statutory duty is cast upon the revenue authorities to verify the authenticity of the said documents. All the documents (soft copies/e-invoices e-way bills) are in the official reach of the department. Hence, the verification is a very simple procedure which is required to be executed by the revenue authorities. Evidently in this case they failed to do so. The case of the petitioner is consistent that the driver was carrying digital copies of the tax invoice as well as e-Way Bill on his mobile number. The Revenue did not verify the digital device of the driver. If the assessee always had relevant documents in his favour, it stands to reason that there was no cause for him not to provide the digital copy of the e-Way Bill to the driver when the goods were being transported. After the driver had produced the digital copy of the tax invoice, it was the responsibility of the revenue to verify the same from the portal. The portal also contains the e-Way Bill which is auto populated after the e-Invoice uploaded. Evidently the Revenue failed to do so. The revenue cannot fasten the penalty upon the tax payers for its own default. The argument on behalf of the revenue to the effect that once the demand raised on the assessee was satisfied by making of payment, the assessee could not carry the order of penalty in appeal and is liable to be rejected - The assessee under Section 129(1) of the GST Act, 2017 has an option either to provide security or to make payment and satisfy the demand in full. However, the mere fact that the assessee has made payment will not disentitle him for carrying the order imposing the penalty in appeal. Since all the documents have been admittedly produced before the authorities at the time of inspection, there was no cause for detention, seizure or imposition of the penalty as has been done by the authorities in this case - It is noteworthy that the revenue is not challenged the authenticity of the bills or the fact that they were not duly filled it or the details were absent in the said bills. No irregularity in the bills have been pointed out on behalf of the revenue. The impugned order dated 04.01.2023 whereby the Assistant Commissioner, Commercial Tax, Mobile Squad-VII, Ghaziabad as well as the order dated 09.05.2023 passed by the respondent No.3/learned appellate authority/Additional Commissioner, State Tax, Mobile Squad, Unit-7, Ghaziabad are liable to be quashed and are quashed - Petition allowed.

Issues Involved:
1. Validity of the penalty imposed under Section 129(3) of the GST Act.
2. Legitimacy of the appellate authority's decision upholding the penalty.
3. Compliance with GST documentation requirements during transportation.
4. Right to appeal after penalty payment under Section 129(1) of the GST Act.

Summary:

1. Validity of the penalty imposed under Section 129(3) of the GST Act:
The petitioner challenged the penalty of Rs. 1,83,442/- imposed by the Assistant Commissioner, Commercial Tax, Mobile Squad-VII, Ghaziabad on 04.01.2023 under Section 129(3) of the GST Act. The penalty was based on the grounds that the vehicle driver failed to produce a signed tax invoice and other valid documents at the time of interception, leading to the conclusion that the goods were transported without valid documentation in violation of the GST Act.

2. Legitimacy of the appellate authority's decision upholding the penalty:
The appellate authority, by order dated 09.05.2023, upheld the penalty, reiterating that the petitioner did not generate and download the e-Way Bill before transporting the goods, and that the driver failed to produce any document apart from the tax invoice at the time of interception. The appellate authority concluded that the petitioner intended to evade tax, thus justifying the penalty.

3. Compliance with GST documentation requirements during transportation:
The petitioner argued that the e-Invoice and e-Way Bill were generated and provided in digital form to the vehicle driver, who produced these documents at the time of inspection. The petitioner further contended that the hard copies of the documents were presented during the proceedings. The Court found that the driver was indeed in possession of a digital tax invoice and e-Way Bill, and that the revenue authorities failed to verify these documents, which were accessible on the GST portal. The Court noted that the requirement for signatures on digital invoices is dispensed with under Rule 46 of the C.G. & S.T. Rules, 2017.

4. Right to appeal after penalty payment under Section 129(1) of the GST Act:
The Court rejected the revenue's argument that the petitioner could not appeal the penalty after making the payment. It held that under Section 129(1) of the GST Act, the assessee has the option to either provide security or make payment, and making the payment does not preclude the right to appeal.

Conclusion:
The Court quashed the orders dated 04.01.2023 and 09.05.2023, finding that the petitioner had produced all required documents at the time of inspection, and there was no cause for detention, seizure, or imposition of the penalty. The amount deposited by the petitioner was ordered to be refunded. The Court criticized the revenue authorities for misdirecting themselves in law and unnecessarily harassing an honest taxpayer, and suggested regular training and dissemination of relevant judgments to the officers.

Order:
The writ petition was allowed, and the impugned orders were quashed. The amount deposited by the petitioner was ordered to be refunded. The Court emphasized the need for proper training and awareness among revenue officers to prevent such issues in the future.

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