2024 (5) TMI 363 - HC - GST

Detention of goods alongwith penalty - e-way bill in the present case had expired on the date when the vehicle-in-question along with the goods were intercepted - HELD THAT - There is no reference to the ground of non-evasion of tax or deliberate delay. Simply because there was no extension of the e-way bill, the same does not pre-supposes that there was an intention to evade tax. There is no finding either by the adjudicating officer or by the appellate authority as regards the intent of evasion of tax. There appears to be no material available to conclude evasion of Tax. Hon ble Supreme Court in the case of Vardan Associates 2024 (2) TMI 189 - SUPREME COURT had been pleased to observe that the appellant cannot shirk from its responsibilities to comply with the requirements in law to generate a fresh e-way bill or to seek extension thereof. But the observations made by the Hon ble Supreme Court in the said judgment are in relation to a challenge as regards payment of tax and penalty and not in relation to the factum of presumption being drawn on the intention to evade tax on the non-extension of the validity of the e-way bill. Petition disposed off.

Summary

Issues Involved:
1. Validity of e-way bill and its extension.
2. Imposition of penalty u/s 129(3) of the West Bengal Goods and Services Tax Act, 2017.
3. Mens rea and intention to evade tax.
4. Obligation of the appellate authority to consider grounds of appeal.

Summary:

Validity of e-way bill and its extension:
The petitioner received an order for the supply of TMT bars and generated the necessary tax invoice and e-way bills for transportation. The e-way bill expired on 12th May 2023 before the goods could reach the consignee. The goods were intercepted on 13th May 2023 before the e-way bill could be extended.

Imposition of penalty u/s 129(3) of the West Bengal Goods and Services Tax Act, 2017:
Upon interception, the goods were detained for not being covered by a valid e-way bill. The petitioner paid the penalty u/s 129(1)(b) to release the goods. An order u/s 129(3) was passed on 18th May 2023 confirming the penalty. The petitioner appealed u/s 107, but the appellate authority dismissed the appeal, upholding the penalty.

Mens rea and intention to evade tax:
The petitioner argued that there was no deliberate intent to evade tax, citing the Kerala High Court's judgment in Hindustan Steel and Cement N. H. Karimbilangadi v. Assistant State Tax Officer, which held that payment of penalty does not absolve the authority from passing an order u/s 129(3). The petitioner also referenced the Division Bench's judgment in Asina Switchgear Private Limited v. State Tax Officer, emphasizing the need for the adjudicating officer to consider the defense before making a decision. The court noted that there was no other allegation apart from the non-extension of the e-way bill.

Obligation of the appellate authority to consider grounds of appeal:
The appellate authority failed to consider the petitioner's grounds of appeal, including the absence of mens rea and the non-evasion of tax. The court highlighted that the absence of mens rea does not automatically justify the imposition of a penalty. The Division Bench in Pushpa Devi Jain v. Assistant Commissioner of Revenue held that without evidence of willful misconduct, penalties should not be imposed.

Conclusion:
The court found no intent to evade tax and noted that the goods were intercepted within 24 hours of the e-way bill's expiry. The orders dated 18th May 2023 u/s 129(3) and 13th September 2023 u/s 107 were set aside. The writ petition was disposed of with no order as to costs.