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TMI Blog2022 (5) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... oods were again sent from the business premisses of the petitioner to its ultimate buyer i.e. K.R. Industries, Sandila. Once the delivery of the goods which has not been taken by the petitioner, has not been disputed by the Revenue as well as validity of the e-way bill generated by Maharastra party, which was valid up to 15.2.2020 i.e. the date of detention and passing of the order under Section 129 (3) of the G.S.T. Act, there cannot be any violation or contravention of the provisions of G.S.T. Act as well as the Rules framed thereunder. The Court finds that there is neither any intention to evade the payment of tax nor any fault nor any contravention of the Act as all valid documents were accompanying with the goods as required under the Act, therefore, the proceedings initiated against the petitioner cannot sustain and are hereby quashed. In the case in hand once the valid document i.e. e-way bill and tax invoice, builty was accompanying with the goods, therefore the authorities ought not to have drag the petitioner in an unnecessary litigation. The writ petition is allowed with cost of Rs. 5000/-. X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner placed its purchase order to SAFE Climber, Thane, Maharastra for supply of the said goods. The petitioner directed the SAFE Climber to directly ship the goods to the purchaser i.e. K.R. Industries, Sandila, (U.P.). Accordingly, the tax invoice was received, wherein the name of the petitioner was shown under the head of buyer and the consignee was shows as K.R. Industries, Sandila on the tax invoice. Further it is submitted that while generating the e-way bill by the Maharastra party, it has been specifically mentioned the name of the petitioner, consignment was shipped to K.R. Industries, Sandila, UP. The goods were also accompanying with builty of New Sagar Indore Transport Corporation and also mentioned in the goods to be consigned to K.R. Industries, Sandila. On reaching at Kanpur, the petitioner has only handed over to its Invoice no. 636 dated 31.1.2020 without taking the delivery of goods. He further submits that e-way bill generated by the seller at Maharastra was valid up to 15.2.2020, therefore, for the same transaction two e-way bills cannot be generated because the goods was in transit and the delivery was not taken. He further submitted that there was no con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd devices and also allow the inspection of goods. Section 129 Detention, seizure and release of goods and conveyances in transit. (1) Notwithstanding anything contained in this Act, where any 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 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 ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) Whenever confiscation of any goods or conveyance is authorised by this Act, the officer adjudging it shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the said officer thinks fit: Provided that such fine leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon: Provided further that the aggregate of such fine and penalty leviable shall not be less than the amount of penalty leviable under sub-section (1) of section 129: Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. (3) Where any fine in lieu of confiscation of goods or conveyance is imposed under sub-section (2), the owner of such goods or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsignment. Explanation 1.- For the purposes of this rule, the expression "handicraft goods" has the meaning as assigned to it in the Government of India, Ministry of Finance, notification No. 32/2017- Central Tax dated the 15th September, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1158 (E) dated the 15th September, 2017 as amended from time to time. Explanation 1.- For the purposes of this rule, the expression ―handicraft goods has the meaning ‖ has the meaning as assigned to it in the as assigned to it in the Government of India, Ministry of Finance, notification No. 56/2018- Central Tax, dated the 23rd October, 2018, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1056 (E), dated the 23rd October, 2018 as amended from time to time. Explanation 2.- For the purposes of this rule, the consignment value of goods shall be the value, determined in accordance with the provisions of section 15, declared in an invoice, a bill of supply or a delivery challan, as the case may be, issued in respect of the said consignment and also includes the central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of this sub-rule, where the goods are supplied by an unregistered supplier to a recipient who is registered, the movement shall be said to be caused by such recipient if the recipient is known at the time of commencement of the movement of goods. Explanation 2.-The e-way bill shall not be valid for movement of goods by road unless the information in Part-B of FORM GST EWB-01 has been furnished except in the case of movements covered under the third proviso to sub-rule (3) and the proviso to sub-rule (5). (4) Upon generation of the e-way bill on the common portal, a unique e-way bill number (EBN) shall be made available to the supplier, the recipient and the transporter on the common portal. (5) Where the goods are transferred from one conveyance to another, the consignor or the recipient, who has provided information in Part A of the FORM GST EWB-01, or the transporter shall, before such transfer and further movement of goods, update the details of conveyance in the e-way bill on the common portal in Part B of FORM GST EWB-01: Provided that where the goods are transported for a distance of upto fifty kilometers within the State or Union territory from the place of busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-mail is available. (9) Where an e-way bill has been generated under this rule, but goods are either not transported or are not transported as per the details furnished in the e-way bill, the e-way bill may be cancelled electronically on the common portal within twenty four hours of generation of the e-way bill: Provided that an e-way bill cannot be cancelled if it has been verified in transit in accordance with the provisions of rule 138B: Provided further that the unique number generated under sub-rule (1) shall be valid for a period of fifteen days for updation of Part B of FORM GST EWB-01. (10) An e-way bill or a consolidated e-way bill generated under this rule shall be valid for the period as mentioned in column (3) of the Table below from the relevant date, for the distance, within the country, the goods have to be transported, as mentioned in column (2) of the said Table:- Sl. No. Distance Validity period (1) (2) (3) 1 Upto 100 km. One day in cases other than Over Dimensional Cargo. 2 For every100 km or part thereof thereafter One additional day in cases other than Over Dimensional Cargo 3 Upto 20 km. One day in case of Over Dimensional Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every State and Union territory. (14) Notwithstanding anything contained in this rule, no e-way bill is required to be generated- (a) where the goods being transported are specified in Annexure; (b) where the goods are being transported by a non-motorised conveyance; (c) where the goods are being transported from the customs port, airport, air cargo complex and land customs station to an inland container depot or a container freight station for clearance by Customs; (d) in respect of movement of goods within such areas as are notified under clause (d) of sub-rule (14) of rule 138 of the State or Union territory Goods and Services Tax Rules in that particular State or Union territory; (e) where the goods, other than de-oiled cake, being transported, are specified in the Schedule appended to notification No. 2/2017- Central tax (Rate) dated the 28th June, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 674 (E) dated the 28th June, 2017 as amended from time to time; (f) where the goods being transported are alcoholic liquor for human consumption, petroleum crude, high speed diesel, motor spirit (commonly known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls and precious or semi-precious stones; precious metals and metals clad with precious metal (Chapter 71) 5 Jewellery, goldsmiths' and silversmiths' wares and other articles (Chapter 71) 6 Currency 7 Used personal and household effects 8 Coral, unworked (0508) and worked coral (9601) Rule 138A - Documents and devices to be carried by a person- incharge of a conveyance (1) The person in charge of a conveyance shall carry- (a) the invoice or bill of supply or delivery challan, as the case may be; and (b) a copy of the e-way bill in physical form or the e-way bill number in electronic form or mapped to a Radio Frequency Identification Device embedded on to the conveyance in such manner as may be notified by the Commissioner: Provided that nothing contained in clause (b) of this sub-rule shall apply in case of movement of goods by rail or by air or vessel. Provided further that in case of imported goods, the person in charge of a conveyance shall also carry a copy of the bill of entry filed by the importer of such goods and shall indicate the number and date of the bill of entry in Part A of FORM GST EWB-01 (2) A registered person may obtain an Invoice Referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tax payable on such goods. Further 129 (3) provides that 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). Sub-section 6 provides 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 [fourteen days] of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of section 130. Further Sub-section 5 provides 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. 9. Section 130 provides notwithstanding anything contained in this Act, if any person 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 then such goods or conveyances shall be liable to confiscation and the person shall be liable to penalty under section 122. 10. Rule 138 provides that Every registered person who causes movement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods in question i.e. PVC Resin which was coming from Maharastra and was to be delivered at Sandila to K.R. Industries, tax invoice on which I.G.S.T. was charged has not been disputed, therefore, no contravention of the provisions of the Act can be attributed. Once before starting the journey e-way bill was generated from Maharastra and ending at Sandila, at the place of ultimate purchaser i.e. K.R. Industries was mentioned, it can not be said that there was any contravention of the provisions of the Act. The department was well aware of the fact that the goods in question was to be delivered at Sandila (U.P.). It is not the case of the department at any stage that the goods which were coming from Maharastra, the delivery of the same was taken from Transporter and the goods were unloaded in the business premisses of the petitioner and thereafter the goods were again sent from the business premisses of the petitioner to its ultimate buyer i.e. K.R. Industries, Sandila. Once the delivery of the goods which has not been taken by the petitioner, has not been disputed by the Revenue as well as validity of the e-way bill generated by Maharastra party, which was valid up to 15.2.2020 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods in question could not be taken to the destination within time for the reasons beyond the control of the writ petitioner. When the undeniable facts, including the traffic blockage due to agitation, are taken into consideration, the State alone remains responsible for not providing smooth passage of traffic. Having said so; having found no question of law being involved; and having found this petition itself being rather misconceived , we are constrained to enhance the amount of costs imposed in this matter by the High Court. The High Court has awarded costs to the writ petitioner in the sum of Rs. 10,000/- (Rupees Ten Thousand) in relation to tax and penalty of Rs.69,000/- (Rupees Sixty-nine Thousand) that was sought to be imposed by the petitioner No.2. In the given circumstances, a further sum of Rs. 59,000/- (Rupees Fifty-nine Thousand) is imposed on the petitioners toward costs, which shall be payable to the writ petitioner within four weeks from today. This would be over and above the sum of Rs. 10,000/- (Rupees Ten Thousand) already awarded by the High Court. Having regard to the circumstances, we also make it clear that the State would be entitled to recover the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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