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TMI Blog2022 (5) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax. The second e-way bill was generated bonafidely and in circumstance beyond control of the petitioners. The averments of the petitioners that generating the second e-way bill was totally bonafide, has also not been denied by the respondents. Since the goods were covered by valid documents, therefore, it could not have been detained or seized and hence the entire proceedings were totally arbitrary, illegal and without jurisdiction. The action of the respondents in seizing the goods in question is evidently an act of harassment to the petitioners, breach of their fundamental rights guaranteed under Article 14 of the Constitution of India and blatant abuse of power by the respondents. The impugned detention order dated 07.03.2022, the release order dated 13.03.2022 and notices dated 22.03.2022 and 28.03.2022, are hereby quashed being totally arbitrary and illegal. The goods and vehicle in question seized by the respondents are directed to be released forthwith - the writ petition is, accordingly, allowed with cost of Rs.50,000/- to each of the petitioners, i.e. total Rs.1,00,000/- which the respondents shall pay the petitioners within four weeks from today. - Writ Tax No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not been denied by the respondent no.3 in the counter affidavit dated 05.05.2022. 5. In paragraph 6 of the writ petition , it has been stated that the goods manufactured by petitioner no.1 are usually consumed in Nepal which he used to export to Nepal covered under the letter of undertaking for export of excisable goods without payment of duty under Notification No.42/2001- CE(N.T.) dated 26.06.2001 . In paragraph 7 of the writ petition , it has been stated that in the course of business, petitioner no.1 dispatched the consignment of BIJLI SPIT TOBACCO packed in 200 boxes valuing Rs.7,20,000/- covered under the invoice no.51/2021-22/GTMC dated 14.01.2022 to Lumbini Traders, Krishna Nagar, Nepal , through the transporter namely, Ankul Transport Service. In paragraphs 8 and 9 , it has been stated that HSN code of the commodity meant for export was mentioned on the aforesaid invoice, and that the digits of tariff mentioned therein are required to be mentioned only when the commodity is subject matter of export. In paragraph 10 of the writ petition, it has been stated that in the invoice it was specifically mentioned that Export to Nepal Goods dispatched under LUT ARN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods in question and for the purpose of compliance of the provisions of rule 138 and 138A being transporter generated E-way bill no. 4712 3392 2443 on 26.02.2022 itself by giving the details of the documents . A true/photo copy of the GR No. 635 dated 26.02.2022 and E-way bill no. 4712 3392 2443 are being filed herewith and marked as Annexure No.9 and 10 to this writ petition. 8. The aforequoted paragraphs 14, 15, 16 and 17 of the writ petition have been replied by the respondent no.3 in paragraphs 33, 34 and 35 of the counter affidavit in which he has not specifically denied the contents of the aforesaid paragraphs of the writ petition. Thus, the averment of facts made in paragraphs 14, 15 and 16 of the writ petition stands admitted to the respondents. What has been stated in the counter affidavit while replying the aforesaid paragraphs of the writ petition is that the petitioners being aware of the COVID-19 pandemic situation, should not have export the goods and, instead of getting generated the second eway bill, should have got extended the validity of the e-way bill within 8 hours of its expiry as per the provisions of Rule 138(10) of the CGST/IGST Rules. 9. In par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n replied in paragraphs 42, 43, 44 and 45 of the counter affidavit in which there is no specific denial . 12. Thus, from the facts as may be ascertained from the averments made by the parties in the writ petition and the counter affidavit, it is admitted to the parties that the goods in question originated from Panipat and were being transported with valid invoice from Panipat to Nepal but due to restriction imposed on account of COVID-19 pandemic, as specifically mentioned in paragraphs 14, 16, 17, 27 and 28 of the writ petition, the goods were unloaded at Gorakhpur and after the arrangement of another vehicle was made under prevailing situation of COVID-19 pandemic, the goods were transported to Nepal. Since the time gap was much, therefore, a second e-way bill was generated so that the goods may reach to its destination at Nepal. There is absolutely no dispute that the goods in question were dispatched by the petitioner no.1 from Panipat (Haryana) under valid invoice and valid papers. The goods in question were intercepted and seized by the respondents on hyper-technical ground and assumptions, without there being any allegation of intention to evade payment of tax. The sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the e-way bill is not extended even four(04) hours before the expiry or four(04) hours after the expiry, which is untenable . The 2nd respondent merely states in the counter affidavit that there is clear evasion of tax and so he did not consider the said explanations. This is plainly arbitrary and illegal and violates Article 14 of the Constitution of India , because there is no denial by the 2nd respondent of the traffic blockage at Basher Bagh due to the anti CAA and NRC agitation on 4.01.2020 up to 8.30 pm preventing the movement of auto trolley for otherwise the goods would have been delivered on that day itself. He also does not dispute that 04.01.2020 was a Saturday, 05.01.2020 was a Sunday, and the next working day was only 06.01.2020. The High Court has further found and, in our view, rightly so thus: 42. How the 2nd respondent could have drawn an inference that petitioner is evading tax merely because the e-way bill has expired , is also nowhere explained in the counter- affidavit. In our considered opinion, there was no material before the 2nd respondent to come to the conclusion that there was evasion of tax by the petitioner merely on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open. The submissions sought to be made do not give rise to even a question of fact what to say of a question of law. As noticed hereinabove, on the facts of this case, it has precisely been found that there was no intent on the part of the writ petitioner to evade tax and rather, the goods 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 mis-conceived , 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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