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TMI Blog2020 (1) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods. It is trite law that the Circular issued by the Central Board of Indirect Tax and Customs is only binding upon the authorities and not upon the assessee. I have to mention here that the Circular and the Form are not complying with the mandatory provision of giving notice to the person who is the owner of the goods and upon whom the imposition of penalty is to be made - in the present case, the petitioner-company is having its registered office at Siliguri, Darjeeling District. Therefore, the reason for non-service of the notice by the Assistant Commissioner of State Goods and Service Tax, Siliguri upon the petitioner-company that was located within 15 kms. remains unexplained. Thus, it is clear that in the present case, there has been more than a technical infringement of the statutory provision as no hearing whatsoever was granted to the petitioner. Having not been granted an opportunity of hearing, the petitioner was unable to put his case before the concerned authority. Surprisingly, the notice in FORM GST MOV-07 was served upon the driver but the order passed in FORM GST MOV-09 was served upon the driver and the petitioner-company. The notice required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. According to the petitioner the vehicle had left the premises of the petitioner at 4.15 p.m. and the waybill was generated at 5.10 p.m. In the meantime, the vehicle had been intercepted at Phool Bari and because of the lack of the waybill the vehicle was detained by the relevant authorities. It is to be noted that the statement (Form GST MOV - 01) of the driver of the vehicle was recorded at 5.00 p.m. on March 23, 2019 and the vehicle was inspected on the same day at 5.00 p.m. (Form GST MOV 02). Subsequently, an order of detention under Section 129(1) of the WBGST Act, 2017 read with the CGST Act, 2017 was passed on March 25, 2019 on the ground that no e-waybill was tendered for the goods that were in movement. Initially, the writ petition had been filed on April 03, 2019 challenging the detention by the relevant authorities. d. When the matter was moved on April 05, 2019 the same was adjourned as the Additional Government Pleader sought time to take instructions. Subsequently, the goods were released subject to furnishing of bank guarantee by an order of a coordinate bench of this Court dated April 16, 2019. On April 16, 2019 the respondent authorities also inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e WBGST Act, 2017 and is a sine qua non for any imposition of penalty. He further submitted that it is clear from the facts that the documents such as invoice, challan and insurance policy were with the goods and therefore, there was no mens rea what so ever for evasion of tax. He relied on Dilip N. Shroff v- Joint Commissioner of Income Tax, Mumbai and Another reported in (2007) 6 SCC 329 [Coram: S.B. Sinha and P.K. Balasubramanyan, JJ.] ; Ferring Pharmaceuticals Private Ltd. and Another v- Assistant Commercial Tax Officer and Others reported in (2006) 147 STC 252 (Cal) [Coram: Asok Kumar Ganguly and Maharaj Sinha, JJ.] and Zarghamuddin Ansari (Anwar) v- Commercial Tax Officer Others reported in 38 STA 129 (Cal) (DB) [Coram: Altamas Kabir and Alock Kumar Basu, JJ.] to buttress his argument that imposition of penalty has to be based on the mens rea and culpability arising from such mens rea for the purpose of evasion of taxes that would lead to imposition of penalty. 5. Mr. Boudhayan Bhattacharyya, further submitted that it is clear from the records that the petitioner did not file any objection to the notice for imposition of penalty and was not present during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/2018-GST dated April 13, 2018 to advance the argument that as per the Circular under Clause 2(g), the service of notice is required to be served upon the person-in-charge of the conveyance. He further submits that the service of the FORM GST MOV-07 is only required to be effected upon the driver/person-in-charge of the vehicle. He submits that since the petitioner has not challenged the particular Circular, he cannot avoid his liability. He further submits that in certain forms, such as, FORM MOV-04, the acknowledgement portion requires the signature of either the owner or the person-in-charge. He submits that in the particular FORM GST MOV-07, the acknowledgement is to be done by the driver or the person-in-charge. He, accordingly, submits that the legislature has deliberately omitted the owner from the FORM GST MOV-07. 9. I have considered the submissions and arguments advanced by counsel appearing on behalf of all the parties and perused the material on record. 10. Before initiating discussions on the legality of the actions of the respondent authorities it is necessary to pen down Section 129 of the WBGST Act, 2017. The same is provided below : 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of section 130: Provided that where the detained or seized goods are perishable or hazardous in nature or any likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer. 11. A bare perusal of the Section indicates that the provision starts with a non-obstante clause and provides that any goods that are in transit in contravention of any of the provisions of this Act or rules made thereunder shall be liable to detention or seizure. Sub-section (3) of Section 129 states that the proper officer detaining the goods shall issue a notice specifying the tax and penalty payable and thereafter pass an order for payment of tax and penalty under Clause (a) or Clause (b) or Clause (c) of Section 129 (1). Sub-section (4) specifically states that no tax, interest or penalty shall be determined under sub-Section (3) without giving the person concerned an opportunity of being heard. 12. On an interpretation on first principles, it is clear that notice for imposition of penalty requires to be served up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the tribunal and the rules and regulations under which it functions. A court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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