9911796707
TMI Blog2021 (11) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a fraudulent transaction and there is nothing on record to show otherwise. Moreover, as already stated vide Annexure-2 I.G.S.T. at the rate of 18% had already been paid. In the instant case goods being transported were interceipted on 19.2.2018, when there was no system of e-way bill in place under C.G.S.T. Act 2017 and U.P.G.S.T. was not applicable - In the judgment in M/S. SHAURYA ENTERPRISES VERSUS STATE OF U.P. AND 02 OTHERS [ 2018 (10) TMI 1237 - ALLAHABAD HIGH COURT] the Division Bench has categorically held that admittedly till 31.3.2018 it was not mandatory to download e-way bill from the official portal. The court further observed that it found substance in the submission of the learned counsel for the petitioner that only with effect from 1.4.2018 the requirement of downloading of e-way bill was compulsory. Petition allowed. - Misc. Single No. - 29323 of 2019 - - - Dated:- 16-11-2021 - Hon'ble Rajan Roy, J. For the Petitioner : Romit Seth, Pritish Kumar For the Respondent : C.S.C. Heard. By means of this petition the petitioner has challenged the order dated 30.3.2019 passed by the Addl. Commissioner (Appeals), Commercial Tax, Lucknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an inter-state transportation of goods, therefore, the Act which was applicable was the Integrated Goods and Service Tax Act 2017 (hereinafter referred as the 'I.G.S.T. Act 2017'). As per section 20(xv) of the I.G.S.T. Act 2017 the provisions of C.G.S.T. Act 2017 apply in respect of matters covered by the I.G.S.T. Act 2017 on the subject of inspection, search, seizure and arrest. Chapter XIV of the C.G.S.T. Act 2017 deals with inspection, search, seizure and arrest. Section 67 of the C.G.S.T. Act 2017 deals with the power of inspection, search and seizure. Section 68 deals with the inspection of the goods in movement. Subsection (2) of section 68 provides that the details of the documents required to be carried under sub-section (1), shall be validated in such manner as may be prescribed. As would be evident from reading of section 68 of the C.G.S.T. Act 2017 the documents which the Government may require the person in charge of the conveyance, carrying any consignment of goods of value exceeding such amount as may be specified, are such, as may be prescribed. Now this prescription has been made under Rule 138 of the C.G.S.T. Rules 2017, according to which till such tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansport Corp. v. State of U.P. ors. The court also takes note of the fact that the I.G.S.T. at the rate of 18% had already been paid by the petitioner as is evident from the document annexed as Annexure-2 which has not been denied in the counter affidavit. The goods were being transported alongwith the taxinvoice etc., therefore, it was not a fraudulent transaction and there is nothing on record to show otherwise. Moreover, as already stated vide Annexure-2 I.G.S.T. at the rate of 18% had already been paid. Moreover, the court may again refer to the Division Bench judgment of this court dated 13.4.2018 rendered in Satyendra Goods Transport Corp. (supra) wherein similar issues were considered and thrashed out. It has been held therein that in an inter-State transportation of goods U.P.G.S.T. Act 2017 will not appply. In fact in the said judgment it has been categorically recorded on the basis of the statement made by Dr. Dipti Tripathi, learned counsel for the Government of India, that the C.G.S.T. Rules 2017 were amended on 13.8.2017 and vide another notification dated 29.12.2017 this amendment containing the e-way bill system was to come into force from 1.2.2018, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.F. Form I or not, which we have answered in the negative. As regards the provisions of section 129 U.P.G.S.T. Act 2017 under which the impugned action has been taken, the same is not applicable to an inter-State trade or commerce. By virtue of section 20 of the I.G.S.T. Act 2017 it is section 129 of C.G.S.T. Act 2017 that would apply, but this is not the ground on which we are invalidating the impugned action, as, if it is traceable to the aforesaid provision of C.G.S.T. Act 2017 which is pari materia to the State Act, then mere wrong mentioning of a provision would be too technical a ground for interference. We are invalidating the action on account of absence of any notification by the Central Government under Rule 138 of C.G.S.T. Rules 2017 and in view of incorrect application of notification issued by the State Government under Rule 138 of U.P.G.S.T. Rules. We are supported in our view not only by the statement made by Dr. Deepti Tripathi as recorded hereinabove, but also by the judgment of the Kerala High Court on the subject as reported in ASCICS Trading Company v. Assistant State Tax Officer anr., 2017 NTN (Vol.65) 145, wherein it has been held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o evade tax. The said decision applies to the case at hand also. We may also refer to another Division Bench judgment of this court in Writ (Tax) 587 of 2018, Godrej Boyce Manufacturing Co. Ltd. v. State of U.P., decided on 18.9.2018 , wherein also these aspects of the matter have been considered. Even as per the said decision the impugned action is not sustainable. We may also refer in this regard to a Single Judge Bench judgment dated 22.11.2019 rendered in Writ Petition No. 23248 (MS) of 2019 wherein also a similar issue was considered and the facts of the case were quite similar to the one at hand. In the said decision relying upon the Division Bench judgment in the case of Satyendra Goods Transport Corp. v. State of U.P. (supra) and another Division Bench judgment in the case of M/s Shaurya Enterprises v. State of U.P. ors., Writ Tax No. 563 of 2018 , similar orders passed were quashed. In the judgment in Shaurya Enterprises (supra) the Division Bench has categorically held that admittedly till 31.3.2018 it was not mandatory to download e-way bill from the official portal. The court further observed that it found substance in the submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
