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TMI Blog2020 (2) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... l. There was no discrepancies either with regard to other documents accompanied the consignment or with the quantity of goods being transported. Rule 138(10) says that validity of e-way bill may be extended within 8 hours from the time of its expiry but in the instant cases the vehicle was practically apprehended in almost 08 to 09 hours of the expiry of the e-way bill, prima facie it appears that, the appellant has been not given reasonable opportunity to update the Part-A of e-way bill. It was noted that Part-B of the e-way bill was duly filled which puts to rest on any doubts about the intention of the appellant to evade tax. The non-furnishing of information in Part-B 01 of FORM GST EWB-01 amounts to the e-way bill becoming the not a valid document. It appears that e-way bill is invalid only if Part-B of E-way bill is not filled or a considerable time to update the Part -A of e-way bill has gone by - Similarly, the para no. 5 of the circular says in case a consignment of goods is accompanied with an invoice or any other specify document and also an e-way bill, proceeding u/s 129 of the GST Act may not be initiated. Therefore, imposition of tax/ penalty by the respondent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed pipe (Round) to the aforesaid purchaser, generated the Invoice No. DS2101028708, DS2101028684 DS2101028710 and accordingly consigned the goods to Irrigation Public Health, delivery at Anni, Himachal Pradesh through vehicle no. PB 23K 8947, PB 65AT 9888 PB 23K 9159, under G.R. No. 766963.766958 8766962 dated 31-10-2018 of M/s. Zinka Logistics Solutions Pvt. Ltd. The appellant accordingly generated E-way bills No. 8010 2524 4745, 8710 2521 7483 8310 2525 4772 on 1-11-2018 with validity up to 20-11-2018. The goods in question started its movement from Thelkoloi, Odisha. 3. The goods reached at Chandigarh on 20-11-2018 and transshipment took place at Chandigarh and new vehicles HP 21B 3210, HP 63 4038 HP 11C 4691, were arranged by the branch of appellant for further movement of goods from Chandigarh to Anni, Himachal Pradesh as the driver of original vehicles were not in a position to drive the vehicle in hilly terrain. 4. The branch of the appellant arranged the local vehicle HP 21B 3210, HP 63 4038 HP 11C 4691 , from Chandigarh Itself and accordingly an entry to the said effect was done in Part B of E-way Bill No-8010 2524 4745 8710 2521 7483 8310 2525 4772 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of detection was stationary for quite some time as the driver had visited his native place and was trying his best to contact the transport company to update about his location and delay in reaching the destination. iv) That the goods in the present case were in respect of government undertaking i e. Irrigation and Public Health. after advance purchase order placement, followed by the inspection of goods by the technical team. There is not an iota of possible evasion of the tax by the seller, purchaser or transporter of goods. The appellant is relying on the judgment of Kerala High Court dated 17.01.2018 in WP(C) 196 of 2018 = 2018 (1) TMI 1313 - KERALA HIGH COURT . v) That the present transaction is an Interstate transaction and IGST is payable and paid thus demand and penalty of equal amount is even otherwise, is not legally sustainable as the provisions provides for action only when there is evidence of non payment of the tax at first hand. vi) That the impugned order has been passed in mechanical manner without appreciating the factual position and genuineness of transaction. vii) That the Proper Officer charged IGST from the appellant on the goods deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder with intent to evade payment of tax; (g) does not account for any goods on which he is liable to pay tax under this Act; or (h) Supplies any goods liable to tax under this Act without having applied for registration; or (i) Contravenes any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or (j) Uses any conveyance as a means of transport for carnage of goods in contravention of the provisions of this Act or the rules made thereunder unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance. Then all such goods or conveyances shall be liable to confiscation and the person shall be liable to penalty under section 122. Kerala High Court has very aptly determined in M/s. Indus Towers Limited versus The Assistant State Tax Officer and State Tax Officer (intelligence) 2018 (01) LCX0010 = 2018 (1) TMI 1313 - KERALA HIGH COURT that the invocation of section 129 can only be done when ingredients of section 130 are present. Relevant portion is extracted hereunder for ready refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e different cases having taxable value of ₹ 10,04,938/- ₹ 10,58,310.07/-and ₹ 7,93,072/- respectively taxed @ 18% having IGST value ₹ 1,80,889/- ₹ 1,90.135.81/- and ₹ 1,42.753/- respectively thereby making total invoice value equal to ₹ 11,85,827/- ₹ 12,42,446/- and ₹ 9,35,824/-respectively through three different invoices having three different serial Nos dated 31-10-2018. M/s. Bhushan Power and Steel Limited consigned the above mentioned consignments through transporter Zinka Logistics Solutions Private Limited after generating three E-way bills for three consignments And for all the three consignments three E-way Bills were generated that were valid up to 20-11-2018 whereas vehicles were intercepted on 21-11-2018 and on verification E-way Bills in all the three cases were found to be expired. (iii) Reply to para 7 She submitted that para 7 of appeal is denied as there is no excuse mentioned in statute for having festive season which can be considered as an explanation for expiry of E-way bill. If validity of EWB expires, the goods are not supposed to be moved because as per the Rule of E-way bill system the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er been modified vide its Circular No. 64/38/2018 dated 14th September 2018 which specifically as down that: Section 68 of the CGST/HPGST Act read with rule 138A of the Central Goods and Services Tax Rules. 2017 (hereinafter referred to as the CGST/HPGST Rules ) requires that the person in charge of a conveyance carrying any consignment of goods of value of exceeding ₹ 50,000/- should carry a copy of documents viz., invoice/bill of supply/delivery challan/bill of entry and a valid E-way bill in physical or electronic form for verification. In case such person does not carry the mentioned documents, there is no doubt that a contravention of the provisions of the law takes place and the provisions of section 129 and section 130 of the CGST/HPGST Act are invocable. Further, in Part B of FORM GST EWB-01 amounts to the E-way bill becoming not a valid document for the movement of goods by road asper Explanation (2) to rule 138 (3) of the CGST/HPGST Rules, except in tile case where the goods are transported for a distance of up to fifty kilometers within the State or Union territory to or from the place of business of the transporter to the place of business of the consignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qual to the fifty per cent of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent of the value of goods or twenty five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty; and (c) Upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. (2) The provisions of sub-section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances. (3) The proper officer detaining or seizing goods or conveyances 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) (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty under clause (a) or clause (b) or clause (c). (xiii) Hence a detailed notices under section 129 (3) of the Goods Services Tax Act, 2017 in Form GST MOV-07 were also served upon all concerned, whereby applicable tax and penalty under sub-section (1) of section 129 of the Goods Services Tax Act was also calculated on the worksheet provided therein and along with it orders of Demand of Tax and Penalty in Form GST MOV-09 were also passed and served upon all the concerned. And it was further directed by undersigned, to show cause, within seven days from the receipt of this demand notice, as to why the proposed tax and penalty mentioned supra should not be payable by the concerned, failing which, further proceedings under the provisions of Goods and services Tax Act, 2017 shall be initiated And that failing to furnish reply within the stipulated date or failing to appear for personal hearing on the appointed date and time, the case will be decided ex- parte on the basis of available records on merits. The entire process followed by undersigned whereby statement of conveyance in-charge in Form GST MOV-01, verification to be conducted in Form GST MOV-02 and report of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detained under section 129 vide Clause (c) of sub-section (1) of Section 129. Representative of supplier was directed to execute a bond equal to value of goods in Form CST INS-04 and security in the form of a Bank guarantee equivalent to the amount of applicable tax and penalty as specified under Sub-Rule (1) Rule 140 of Goods Service rules, 2017 for release of seized goods Goods and conveyances involved were released provisionally in Mov-05; on production of MOV-08 vide Clause C of subsection 129 read with Rule 140 Goods Services Tax Act, 2017. (xvii) In view of all the above said it is stated that the legal and proper orders passed in all the three cases are highly justified and valid and the same may be upheld as they have been passed after affording reasonable opportunity of being heard to all the concerned. Ld. Proper Officer further stated that the orders under consideration have been passed to ensure proper implementation of E-way Bill Act Rules and to further safe guard and protect Government revenue in the matters where consignment were found under the cover of expired E-way Bills and once expired E-way Bill becomes not only invalid but illegal. Further allowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments accompanied the consignment or with the quantity of goods being transported 15. Rule 138(10) says that validity of e-way bill may be extended within 8 hours from the time of its expiry but in the instant cases the vehicle was practically apprehended in almost 08 to 09 hours of the expiry of the e-way bill, prima facie it appears that, the appellant has been not given reasonable opportunity to update the Part-A of e-way bill. It was noted that Part-B of the e-way bill was duly filled which puts to rest on any doubts about the intention of the appellant to evade tax. Secondly, Circular No. 64/38/2018-GST dated 14th of September, 2018 issued by the Central Board of Indirect Taxes and Customs and the circular of Government of Himachal Pradesh dated 13.032019 valid from 14 09 2018 clearly states in para no.3 as under;- 16. that Section 68 of the CGST/HPGST Act read with rule 138-A of the Central Goods and Services Tax Rules, 2017 (hererafter referred to as the CGST/HPGST Rules ) required that the person incharge of a conveyance carrying any consignment of goods of value exceeding ₹ 50,000 should carry a copy of documents VIZ, invoice/ bill of supply/ delivery cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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