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TMI Blog2023 (6) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... s been produced by the Department wherein the field 'njjp' is blank. The petitioner has no explanation to offer in regard to this discrepancy. The above position also constitutes a question of fact and it is thus appropriate, that the appellate authority look into the matter, specifically the genuineness of the explanation put forth by the petitioner in regard to the on-road delay allegedly suffered by the consignment, and take a considered view, after taking into account all applicable facts and circumstances as well as the Circulars issued, as applicable and in accordance with law. In TVL. THIRUVANNAMALAIYAR TRANSPORT REP. BY ITS PROPRIETOR SR. V. KESAVAN VERSUS THE DEPUTY STATE TAX OFFICER, STATE TAX OFFICE I (INT) , VELLORE. [ 2022 (12) TMI 710 - MADRAS HIGH COURT ], a learned Judge of this Court has allowed that writ petition, proceeding on the basis of paragraph 10 of Circular No.10 dated 31.10.19, on the facts and circumstances of that case. In light of the factual distinctions noticed in the paragraphs supra, this decision is of no avail to the petitioner in the present case. The writ petition is dismissed with liberty granted to the petitioner to work out its remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondent has, in the impugned order specifically dealt with the submission that the transaction is exempt noting that the petrol power weeder is liable to tax at 12%. 7. Thus, liability to tax, or otherwise, would depend upon the petitioner satisfying the authorities in the course of assessment of the nature of the machinery and resultant liability to tax. Since such determination involves examination and determination of facts, this question would best be left to the discretion of the authorities. 8. Undoubtedly, there is wide discretion that is available to an authority in the levy of penalty that may range from Rs. 5000/- to 200% of the value of goods, which is the maximum penalty. In the present case, the officer has levied penalty at the rate 200% and the impugned order reads thus: PROCEEDINGS OF THE STATE TAX OFFICER-1, ADJUDICATION CELL, VELLORE DIVISION, VELLORE PRESENT: TMT. E. SOODAMANI GDN.NO.2450/22-23 DATED: .03.2023 Sub: GST Act 2017 Goods detention Roving Squad-II, Thiruvannamalai Notice issued reply received Order passed Regarding. Ref: 1.Goods detention notice issued by Deputy State Tax Officer, Roving Squad-II, Thiruvannamalai in GDN.No.2450/22-23 in from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax/Union territory Integrated tax Cess 1 2 3 4 5 6 7 8 9 10 11 12 13 -NIL- 2. CALCULATION OF APPLICABLE PENALTY UNDER CLAUSE (a) OF SUB-SECTION (1) OF SECTION 129 RATE OF TAX PENALTY AMOUNT Description goods HSN Code Quantity Total Value Central Tax State Tax/Union Territory Integrated Tax Cess Central Tax State Tax/Union Territory Integrated tax Cess 2 3 4 5 6 7 8 9 10 11 12 13 Petrol Pwer Weeder 84 32 10 90 32 Nos. Rs. 15,36,000/- .... .... 12% x 200% .... .... .... Rs. 3,68,640/- .... 6. Incorporating the above points, a notice in FORM GST MOV-07 was issued and duly served on the person in charge of the conveyance, providing him an opportunity to file objection, if any against the demand of penalty as applicable and to make payment of the same and to get the goods and conveyance released. 7. In response to the said notice, The consignee of the goods Tvl. Ajay Agency, Thiruvannamalai has filed objections as under. (i) The consignee stated that goods (Petrol Power Weeder) moved from Kothapur to Gingee. The Roving Squad Officials detained the vehicle for the reason that expiry of E-way bill. E-way bill was expired due to break down of the truck carrying consignment, repair and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty upto Rs. 5000/- per act shall be levied: Where the movement of goods is accompanied by any one of the basic documents such as invoice or bill of supply or delivery challan or E Way bill as prescribed in Rule 55A and 138 A of the TNGST Rules 2018, and in such cases where at least one of the basic documents, manifestly showing sufferance of tax in the particular transaction is available, a penalty of upto Rs. 5000/- per act shall be levied so as to deter the recurrence of offence. The following are examples in this context: Example 1 : Vehicles meant for a vehicle distributor are delivered at the stock yard/godown/branch; the transporter possesses the necessary tax invoice, but the E-Way bill was generated for principal place of business / different place of business. In the case the CGST/SGST/IGST (if interstate supply) would have been suffered at the hands of manufacturer or distributor. Mere delivery of the goods at a place other than those mentioned in the documents would not render the transaction as an evasion or abetment of evasion. Being a B 2 B transaction, trail of transaction would now be available in GSTR 1 for the department. Example 2: A conveyance carrying the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, GST Policy Wing. In CBEC/20/16/03/2017-GST. 6. Circular 10/2019 amendment issued in IW1/3365394/2022, dated 10.01.2023. In the circulars in the references 1, 2, 3 6 cited above, detailed instructions have been issued on the protocol for Roving Squad. For further clarity, the following amendment is hereby issued to the Circular No.10/2019 dated 31.05.2019 as amended on 17.12.2019, 15.11.2021 10.01.2023. 2. In para 9 of the said circular, instructions have been issued for CIRCUMSTANCES WHERE NO PENALTY SHALL BE LEVIED BY THE ROVING SQUAD . The Existing para 9 (i), (ii) (iii), are extracted below: i)Where the amount involved in the offence is less than Rupees Five Thousand. (ii) Where a mistake or omission in document is easily rectifiable and has been committed without fraudulent intent or gross negligence or is not backed up with any sort of malicious intent to evade taxes. (iii)Where the issue relates to rate of tax, classification of goods, place of supply disputes, valuation of goods etc., Instead of levying tax and penalty on the spot, these types of cases shall be re- ferred to the assessment circle concerned for further action, without detaining the goods and conveya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as amended paragraph 9 of Circular dated 31.05.2019 and sets out the position prescribed and prevailing as on date in regard to circumstances where nil/reduced penalty of Rs. 500 may be levied for violations committed in transit of consignments. Paragraph number 10 of Circular No.10 of 2019 has been left untouched and would thus still be available in those specific circumstances. 14. However, in this case, there is one distinguishing and supervening factor. The impugned order refers to a supporting document provided by the transporter and placed at page 101 of the compilation accompanying the writ affidavit containing the date 06.03.2023 in the column 'njjp'. However, the same document has been produced by the Department wherein the field 'njjp' is blank. The petitioner has no explanation to offer in regard to this discrepancy. 15. The above position also constitutes a question of fact and it is thus appropriate, that the appellate authority look into the matter, specifically the genuineness of the explanation put forth by the petitioner in regard to the on-road delay allegedly suffered by the consignment, and take a considered view, after taking into account all ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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