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TMI Blog2019 (11) TMI 1512X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 68 of the Act ibid and Rule 138 of the Rules. In any tax administration the provisions for Inspection, Search, Seizure and Arrest are provided to protect the interest of genuine taxpayers (as the tax evaders, by evading the tax, get an unfair advantage over the genuine taxpayers) and as a deterrent for tax evasion. These provisions are also required to safeguard Government s legitimate dues. Thus, these provisions act as a deterrent and by checking evasion provide a level playing field to genuine taxpayers - The statutory scheme is that Chapter XVI of the combined Acts deals with inspection, search, and seizure. Section 129 under Chapter XIX of the Acts provides the mechanism for detention, seizure, and release of goods and conveyances in transit. It begins with a non obstante clause and goes on to lay down the procedure. If any person transports or stores any goods contravening this Act or its rules, all those goods and means of transport and documents relating to those goods and conveyance will be detained or seized. In the present case, the Proper Officer, Panchkula has imposed penalty on the ground that the goods in question were being transported without any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax amount at ₹ 70,454/- and penalty amount at ₹ 70,454/- totalling to ₹ 1,40,908/- which stands deposited by the appellant on 18-5-2018 vide CPIN No. 18050200001644. 2. However, in the present appeal case, the appellant submitted the original copy of impugned order along with appeal document instead of certified copy of order. In the meantime M/s. Asha Cargo Movers Pvt. Ltd., Delhi an appellant whose case was similar nature filed an appeal before the Hon'ble Punjab and Haryana High Court. Hence the case was kept pending till the decision of this case. But as per direction by the Hon'ble High Court in the case of titled as M/s. Asha Cargo Movers Pvt. Ltd., Delhi v. State of Haryana, CWP 31699 of 2018 decided vide order dated 24-7-2019, the orders were against the department, since the original copy of order is already available with the appeal document, so this case is taken up for hearing on merit after affording proper opportunity of being heard to the appellant. Both the sides have been heard in detail. 3. The impugned order dated 4-5-2018 was communicated to the appellant on 4-5-2018 and the present appeal has been preferred on 13-8-2018. As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 1,40,908/- comprising tax of ₹ 70,454/- and penalty of ₹ 70,454/- under Section 20 of the IGST Act read with Section 129(1)(a) of the HGST/CGST Acts, which is the subject matter of present appeal. 5. Sh. Chetan Jain, Advocate for the appellant has assailed the impugned order on the following grounds :- (A) That the order passed by the Proper Officer is arbitrary in nature and the tax and penalty has been imposed without going into the merits of the case. (B) That the order of demand of Tax and Penalty passed by the Proper Officer is defective as the said order has been passed in the name of the transporter i.e. Nalagarh Truck Operator Union Nalagarh HP, person-in-charge of the conveyance being Sh. Gurpal Singh whereas it is crystal clear that both parts of E-way Bill i.e. Part-A and Part-B was filled in by the Consignor Company M/s. HUL Ltd. HP (Baddi). Thereafter, the interception of the goods notice in FORM GST MOV-07 was served on the person-in-charge of the Conveyance/ Vehicle Goods i.e. Mr. Harminder Singh, who is the concerned person of the Consignor Company and has nothing to do with the Transporter. And resultantly, in response to the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the goods and for the same he has issued verification report in part-A and part-B on 5-5-2018 itself wherein no time has been mentioned. When the proprietor of the petitioner's firm has received the information about interception of the vehicle, he has immediately generated E-way Bill on 5-5-2018 at 11:55 AM. The submission of the appellant counsel for the petitioner was that though the petitioner has furnished the E-way bill before the respondent No. 3 prior to the seizure proceedings and seizure order, but the respondent No. 3 has passed the seizure order. Again without mentioning the time of passing the seizure order a consequential notice under Section 129(3) of the UPGST Act (hereinafter referred to as the Act) was issued requiring the petitioner to deposit the tax as well as the penalty to the tune of ₹ 46,119/- each. An order under Section 129(3) was also passed on the same day i.e. 5-5-2018 in which no time has not been mentioned by the respondent No. 3. The said order was quashed. Similarly, in the present case in hand the Conveyance bearing No. HP-12B-5275 was intercepted on 1-5-2018 at 07:40 AM, and the E-way Bill (filled with PART-A) which was alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates beyond doubt that the confiscation of goods is contemplated under the statutes only when a taxable supply is made otherwise than in accordance with the provisions contained in the statutes and the Rules made thereunder with the intent to evade payment of tax. If that be so, mere infraction of the procedural Rules like Rules 55 and 138 of the State GST Rules cannot result in detention of goods, though they may result in imposition of penalty. In other words, detention of goods merely for infraction of the procedural Rules in transactions which do not amount of taxable supply, is without jurisdiction." Hence detention of seizure under Section 129(1) and issuance of SCN under Section 129(3) in absence of intention to evade payment of tax is illegal and doesn't justify the intention of Legislature to penalize the wilful defaulters. 6. On the other hands, Sh. Ajay Saini, Excise & Taxation Officer and Smt. Usha Guru, AETO (Enf.) have defended the impugned order. It has been contended that the order passed by the Proper Officer, is in accordance with the provisions of Act, self speaking and needs no interference. The respondent's prayer is that the present appeal be dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the recipient of supply as the consignee, whether in his own conveyance or a hired one or by railway or by air or by vessel, the said person or the recipient may generate the e-way bill in FORM GST EWB-01 electronically on the common portal after furnishing information in Part B of FORM GST EWB-01. (3) Where the e-way bill is not generated under sub-rule (2) and the goods are handed over to a transporter for transportation by road, the registered person shall furnish the information relating to the transporter in Part B of FORM GST EWB-01 on the common portal and the e-way bill shall be generated by the transporter on the said portal on the basis of the information furnished by the registered person in Part A of FORM GST ENB-01 : Provided that the registered person or, as the case may be, the transporter may, at his option, generate and carry the e-way bill even if the value of the consignment is less than fifty thousand rupees : Provided further that where the movement is caused by an unregistered person either in his own conveyance or a hired one or through a transporter, he or the transporter may, at their option, generate the e-way bill in FORM GST EWB-01 on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upply of goods or services or both in violation of the provisions of this Act or the rules made thereunder; (iii) collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due; (iv) collects any tax in contravention of the provisions of this Act but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due; (v) fails to deduct the tax in accordance with the provisions of sub-section (1) of section 51, or deducts an amount which is less than the amount required to be deducted under the said sub-section, or where he fails to pay to the Government under sub-section (2) thereof, the amount deducted as tax; (vi) fails to collect tax in accordance with the provisions of sub-section (1) of section 52, or collects an amount which is less than the amount required to be collected under the said sub-section or where he fails to pay to the Government the amount collected as tax under sub-section (3) of section 52; (vii) takes or utilises input tax credit without actual receipt of goods or services or both either fully or partially, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, 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; (c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, be released to the owner of the goods (a) on its paying the applicable tax and penalty equal to one hundred per cent. of tax payable on the goods. If the goods belong to an exempted category, a different rate applies, though. If a person other than the owner - for example, a transporter - comes forward, it will have the goods released (b) on its paying the applicable tax and penalty equal to the fifty per cent. of the goods value reduced by the tax amount paid under each Act. Of course, the exempted goods do carry a different rate. Clause (c) of Section 129 permits the consignor or the other party to furnish a security equivalent to the amount payable under clause (a) or clause (b) "in such form and manner as may be prescribed." The proviso to Section 129 of the Acts ensures the principles of natural justice : there will be no detention or seizure without the officer's serving an order on the person transporting the goods. And after considering the aggrieved person's objections under sub-section (4), the officer passes another order, under sub-section (3), specifying the tax and penalty payable under clause (a), (b) or (c). Once the consignor or any other person pays the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Direct Tax and Customs distinguish between interception and detention and hence in the instant case since the petitioner has furnished the E-way Bill prior to detention and seizure of goods, no seizure order can legally be passed nor penalty can be asked. 11. In the present case, the Proper Officer, Panchkula has imposed penalty on the ground that the goods in question were being transported without any proper and genuine document. The presumption was drawn in the matter for violation of law by not fill up the part-B of the E-way Bill in question. The checking officer has not considered the factual aspect of the matter before holding that there was violation of law. The documents produced by the driver-cum-person in-charge of the goods at the time of checking of the goods under dispute do not indicate that any attempt was made to evade tax. Record of case indicates that all the material particulars and information which were required and available in the documents, before issuing detention memo i.e. MOV-06 on 2-5-2018 by the Proper Officer, hence, no mala fide intention are proved or established. Under these circumstances, the question is whether penalty can be imposed onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No :-117/2019-20 Date of order : 21-11-2019 1. GSTIN/Temporary ID/UN - 02AAAAN114P1ZR 2. Name of the appellant - M/s. Nalagarh Truck Operator Union, Nalagarh. 3. Address of the appellant - Ward No. 8, Bilan Wali, Baddi (HP) 4. Order appealed agains - Smt. Usha Gura, AETO (Enf.)-Cum-Proper Officer, Panchkula 5. Appeal no. 046/2018-19, dated 13-8-2018 6. Personal Hearing - 20-12-2018, 10-1-2019, 8-8-2019 & 21-11-2019 7. Order in brief - Appeal Accepted 8. Status of order - Confirmed 9. Amount of demand confirmed - Particulars Central Tax State/UT Tax Integrated tax Cess Total Disputed Amount Determined Amount Dispu-ted Amount Determined Amount Dispu-ted Amount Determined Amount Dispu-ted Amount Determined Amount Dispu-ted Amount Determined Amount 1 2 3 4 5 6 7 8 9 10 11 (a) Tax ---- ---- ---- ---- 70454 ---- ---- ---- 70454 ---- (b) Interest ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- (c) Penalty ---- 5000 ---- 5000 70454 ---- ---- ---- 70454 10000 (d) Fees ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- (e) Others/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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