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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 ..... corresponding similar provisions under the CGST/HPGST Act. 1. Since the all three appeals are similar in nature and pertain to the same appellant therefore taken up together. These appeals have been filed against the order dated 21-11-2018 passed by the Asst Commissioner State Taxes & Excise-cum-Proper Officer, the Mall Road Circle, Shimla vide which an additional demand of Rs. 3,80,272/-in Appeal No. 007/2019, Rs. 3.61,778/- In Appeal No 08/2019 and Rs. 2,85,506/- in Appeal No. ,009/2019 were created against the appellant under sub-section (1) Section 129 of Goods and Service Tax Act, 2017. 2. The brief facts of the cases are that the appellant Bhushan Power & Steel Limited is a registered company having its manufacturing plant at Village Thelkoli, PO Thelkoli, Tehsil Rengali, District Sambalpur, Odisha, 768210. The appellant in pursuance to orders for the purchase received from M/S Engineer-in-Chief, Irrigation & Public Health, Shimla, Himachal Pradesh, while supplying steel tubes Galvanized pipe (Round) to the aforesaid purchaser, generated the Invoice No. DS2101028708, DS2101028684 & DS2101028710 and accordingly consigned the goods to Irrigation & Public Health, delivery at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods submitted the Bank Guarantee and Personal Bond of value directed by the Assistant Commissioner of State Taxes & Excise, Mall Road Circle, Shimla. 10. GROUNDS OF APPEAL: i) That the order dated 21-11-2018 passed by Assistant Commissioner of State Taxes & Excise, Mall Road Circle, Shimla, whereby an additional demand of Rs. 3,80,272/- have been created on account of tax and penalty is illegal arbitrary and unjustified. ii) That the appellant has complied with all the provisions of GST, more specifically section 67 of HP GST Act, 2017 and Section 129 of CGST/HPGST, Act, 2017. Complete documents as envisaged under the statute were Act, accompanied with the vehicle. E-way-bill was duly generated and even at the time of expiry of the same majority distance was covered by the vehicle. The delay in completion of the journey was caused only due to reasons beyond the control of the appellant. iii) That the vehicle in question carrying the goods at the time 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 122 and section 129. Section (1) provides the condition in which confiscation of goods or conveyance is allowed. Section 130 (1) uses the words 'with intent to evade the payment of tax' does not account any goods on which he is liable to pay tax' supplies any goods liable to pay tax under this Act without having applied for registration which indicates that section 130 allows detention where person has willfully contravened the GST provisions with intent to evade payment of tax. The usage of these words in section 130, reference of which is given in section 129 applies in case where willful default and intent to evade payment of taxes is present not when merely mistakes or technical glitches are there. Language of section 130 (1) is reproduced as under: (f) Notwithstanding anything contained in this Act, if any person- Supplies or receives any goods in contravention of any of the provisions of this Act or the rules made thereunder 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) Contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reating an additional demand of Rs. 3,80.272/- in Appeal No. 007/2019, Rs. 3,61 778/- in Appeal No 008/2019 and Rs. 2,85,506/-in Appeal No. 009/2019 on account of GST and penalty be quashed being illegal, arbitrary and unjustified. XXXXX 12. In the reply of the above grounds of appeal, respondent Ms. Poonam Thakur has submitted following points.- (i) Ld. ACST&E in her reply stated that while on checking dated 21-11-2018 three vehicles No, HP 21B 3210, HP 63 4038 & HP 11C 4691, were intercepted. On detailed verification it was found that in all the three cases validity period of the EWB was already expired when the conveyances carrying goods in transit were intercepted (ii) Reply Para I to 6 of appeal: Ms. Bhushan Power and Steel Limited consigned Steel Tube Galvanized pipe (round) to Executive Engineer Irrigation Public Division Anni of different quantity in all the three different cases having taxable value of Rs. 10,04,938/- Rs. 10,58,310.07/-and Rs. 7,93,072/- respectively taxed @ 18% having IGST value Rs. 1,80,889/- Rs. 1,90.135.81/- and Rs. 1,42.753/- respectively thereby making total invoice value equal to Rs. 11,85,827/- Rs. 12,42,446/- and Rs. 9,35,824/-respectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent carried is illegal (vi) Para 12 point 3: In all the three matters conveyance in-charge/drivers have themselves conceded to the fact that the conveyances kept standing for some time in Chandigarh without any valid reason for the same. Moreover there were no exceptional circumstances in any of the matter which could be entered in part B of E-way Bill for extending the validity that was already expired (vii) Detailed Reply to point No.4 to 15 of Para 12 (Grounds of Appeal) A standard operating procedure (SOP) has been laid down by the CBEC vide its Circular No. 41/15/2018 dated 13th April 2018 and circular No. 49/23/2018 dated 21st June 2018 for interception of conveyances for inspection for goods in movement, and detention, release and confiscation of such goods and conveyances which has further 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 Rs. 50,000/- sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made there under, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released, - (a) on payment of the applicable tax and penalty equal to one hundred per cent of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent of the value of goods or twenty five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty (b) on payment of the applicable tax and penalty equal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the final report of the inspection in Part B of FORM GST EWB-03 was also reported, on the common portal. (xi) After affording reasonable opportunity of being heard, order of Detention passed under section 129 (1) of the Goods & Services Tax Act, 2017 in Form GST MOV-06 by undersigned dated 21-11-2018 in all the three cases, were served upon the all the concerned, whereby discrepancies noticed after physical verification of goods and conveyance were narrated in detail. (xii) It has specifically been mentioned in the statute vide sub section 129 that:- 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). (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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the person transporting the goods. (xv) Hence, after affording due opportunity of being heard, the liability of tax and penalty created vide sub-section (1) section 129 was also added electronically in the electronic liability ledger GST PMT-01 in all the cases under consideration. And the Summary of order passed by undersigned in FORM GST MOV-09 was uploaded electronically in DRC-07 on common portal of the person concerned. (xvi)The Proper Officer further stated that authorized signatory Sh. Madan Lal Sharma and Advocate Sh. Rakesh Sharma, who appeared on behalf of supplier tendered a authority letter on behalf of M/s. Bhushan Power & Steel and requested for release of Goods and conveyance 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, Kullu, Himachal Pradesh and travelled a distance of around 2000 kilometers. The goods were accompanied by proper documents transshipped into another vehicle at Chandigarh and the vehicle no. was updated by the appellant and e-way bill was valid at the time of transshipment of the vehicle on 20.11.2018 The validity of the e-way bill expired on midnight of 20.11 2018 and the vehicle was inspected and detained by the respondent at early morning on 21.11.2018. The vehicle was stationary and parked by the road side and driver was called on telephonically and proceedings were initiated u/s 129(1) for expiry of validity of e-way bill. There was no discrepancies either with regard to other documents 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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