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TMI Blog2020 (2) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the State GST officials to consider release of goods in view of the CBIC Circular No. 64/38/2018-GST, dated 14th sep 2018 since the discrepancy in the E-way Bill was due to a typographical error. GST Council vide circular No 64/38/2018 dated 14th September, 2018 and State government vide circular No DT 13.03.2019 effective w.e.f 14.09.2018, in para 5 provides that in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, proceedings under section 129 of the CGST Act may not be initiated in case of minor mistakes like Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill or Error in the address of the consignee to the extent that the locality and other details of the consignee are correct. The mistake in entering distance in E-way bill is a typographic error and may be treated as a minor one. Therefore, the appeal of the appellant is accepted and the order of the Assistant Commissioner State Taxes Excise-Cum proper officer Baddi Circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0322001529 from online portal on 07-09-2018 at 5:29 PM and provided the same to supplier for transportation of goods. c. When the said consignment was entered into Kotla, Barotiwala on 15th Sept 2018 at 10:50am, the inspection team intercepted and detained the vehicle by alleging that, the aforementioned consignment was accompanied with expired e-way Bill which is contravention of Rule 138 of CGST and HPGST Rules 2017, hence attracts penal action u/s 129 (1) of Acts. Subsequently the Ld. ACST E has passed detention order on the same day i.e. 15-09-2018 in the FORM MOV-6 u/s 129 of IGST Act 2017. By which he has been seized the goods along with vehicle. d. In pursuance to detention/seizer order, the appellant has been served a Notice in the FORM MOV-7 by the Id. ACST E u/s 129 (1) of HPGST and CGST Act, 2017/ u/s 20 of IGST Act 2017 directing the Appellant to appear before authority on 17.09.2018 and explain as to why the tax and equivalent amount of penalty may not be imposed u/s 20 of IGST read with section 129 of the Act 2017 on the consignment involved contravention of the rule 138 of the CGST and HPGT Rules 2017. e. The appellant representative attended in per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned order passed by the Ld. AC is illegal and not sustainable. The Ld. AC failed to appreciate the facts, legal provisions and judicial precedents applicable in the present case. Hence impugned order is liable to be set aside and consequent relief ought to be granted to the Appellant. In support the contentions, the Appellant would like to make the following submissions which are without prejudice to and independent of each other. THE IMPUGNED ORDER IS PERVERSE 12.2 The Appellant submitted that the impugned order passed by the Ld. AC is perverse as the appellant has not violated the provision of the Rule 138 of the CGST/HPGST Rule 2017 as alleged in the impugned order. Further, the error which was observed by the inspection team during the inspection is merely a typographical error which was unintentional. The appellant had followed the prescribed procedure of generation of E-way bill as per the provisions, therefore, imposition of penalty in the exercise of powers under Section 129 of CGST act is illegal and not sustainable before law. Hence, the impugned order is liable to be set aside. INVOCATION OF SECTION 129 OF GST 2017 IS NOT WARRANTED FOR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c). (4) No tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. (5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded. (6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within 1 fourteen days 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 are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer. 12.4 that procedure for E-way bill has been prescribed under Rules 138 to 138D of the CGST Rules, 2017. As per the said provisions, every registered person who causes movement of goods of consignment should follow below procedures before and during the commencement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but clearly an abuse of process of law. 12.5 that the appellant has duly complied the procedure specified in the Rule 138 of the CGST and HPGST of rule 2017. The appellant had generated E-way bill through online portal before the commencement of goods transport and mentioned all the essential information as required to the procedure for E-way bill. The person who was in charge of conveyance of the consignment had carried all the prescribed set of documents and produced the same before the inspection authority when they sought for the inspection. It is abundantly clear that, the appellant has followed the procedure absolutely and is not contravention of the Rule 138 of the CGST and HPGST of the Rule 2017 as alleged in the impugned order hence invoking the Section 129 of CGST/HPGST is not sustainable. 12.6 However, the appellant has admitted that, a typographical error had token place while generating the E-way bill, and as a result of which the distance between locations from Puducherry to Himachal Pradesh had mentioned approx. distance 20 KM of 2000 KM. As a result of the said error, the validity of e-way bill was set for only one day and subsequently it got expired on 08- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules in transactions which do not amount to taxable supply is without jurisdiction. That the present case is squarely covered by the circular no. 64/38/2018 doted 14 TH sep 2018. 12.9 The appellant invited attention to the Circular 64/38/2018-GST dated 14th Sept 2018. Issued by CBEC wherein it has been clarified that in case a consignment of goods is accompanied with on invoice or any other specified document and also on e-way bill, proceedings under section 129 of CGST Act may not be initiated. The relevant para is reproduced below. Further, in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way-bill proceedings under section 129 of the CGST Act may not be initiated, inter alia, in the following situations: a) Spelling mistakes in the name of the consignor or the consignee but the GSTIN, wherever applicable, is correct; b) Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill; c) Error in the address of the consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the favour of Assessee while observing that 'if the error in E-way bill is minor apart from being typographical, then it stands covered and exempted under the Circular No. 64/38/2018-GST, dated 14th Sept. 2018'. Given these facts and legal findings, the appellant submitted that present impugned order is not maintainable and should be set aside and the appellant should get relief from the demand and penalty imposed by Ld. AC through impugned order dated 24.09.2019. That the appellant respectfully prayed that the Hon'ble Addl. Commissioner (Appeals), may be pleased to set aside the impugned order and grant consequential relief to the appellant and any other just and equitable relief may please be granted in favour of the Appellant. xxxxxxx In the reply of the above grounds of appeal, the respondent department has submitted following points:- Reply to Pt. No. 12.1: Para is denied, the Ld. AC-cum-Proper Officer passed the order according to the rule 138 of CGST/HPGST Rule, 2017 read with section 129 of CGST/HPGST Act and section 20 of IGST Act, 2017. The order passed by the Ld. AC is legal and genuine, issued after given proper opportunity of being he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017. After detention, the recipient appeared for disposal of the said case, the same has been disposed of with realization of tax and penalty under section 129 (1) (a) of CGST/HPGST Act, 2017. Reply to Pt. No. 12.9: The circular 64/38/2018-GST Dated 14-09-2018 issued by CBEC clarified the minor mistakes to excuse in the e-way bill those are mentioned below:- a) Spelling mistakes in the name of the consignor or the consignee but the GSTIN, wherever applicable, is correct; b) Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill; c) Error in the address of the consignee to the extent that the locality and other details of the consignee are correct; d) Error in one or two digits of the document number mentioned in the e-way bill e) Error in 4 or 6-digit level of HSN where the first 2 digits of HSN are correct and the rate of tax mentioned is correct; f) Error in one or two digits/characters of the vehicle number The applicant mention that the case squarely cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reliance on the judgment of Kerala High Court dated 31 st October, 2019 in SABITHA RIYAZ VS THE UNION OF INDIA (WP (C) 34874 OF 2018) = 2018 (11) TMI 213 - KERALA HIGH COURT wherein Hon'ble Kerala High Court directed the State GST officials to consider release of goods in view of the CBIC Circular No. 64/38/2018-GST, dated 14th sep 2018 since the discrepancy in the E-way Bill was due to a typographical error. The operative portion of the said decision is reproduced below. I reckon the distance between Kerala and Uttarakhand is a matter of record and thus verifiable. As I have already noted, the e-way bill showed the distance as 280kms, instead of 2800kms one zero missing. This cannot be anything other than a typographical error, and a minor at that. Under these circumstances, I hold that the 11th respondent will consider the petitioner's request for release in terms of the circular, expeditiously With these observations, dispose of the writ petition. 6. GST Council vide circular No 64/38/2018 dated 14th September, 2018 and State government vide circular No DT 13.03.2019 effective w.e.f 14.09.2018, in para 5 provides that in case a consignment of g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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