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TMI Blog2023 (7) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... ase the intention of the petitioner is clear that the goods were being transported in the vehicle, with an intention to evade the tax - respondent authorities have shown material, which indicate and infers the intention of the petitioner, which is evasion of tax. The petitioner was transporting goods without the e-way bill, with intent to evade the tax. It attracts the provisions of Section 130 of the Act. Accordingly, an order has been passed under Section 130 of the Act, which is impugned. This Court does not see any reason to make any interference in the impugned order - petition dismissed. - Writ Petition (M/S) No. 924 of 2023 - - - Dated:- 18-7-2023 - HON BLE RAVINDRA MAITHANI, J. Present:- For the Petitioner : Mr. S.K. Posti, Senior Advocate assisted by Mr. Ashutosh Posti, Advocate. For the State : Mr. Mohit Maulekhi, Brief Holder. JUDGMENT HON BLE RAVINDRA MAITHANI, J. (ORAL) The challenge in this petition is made to order dated 07.02.2023 passed by the Assistant Commissioner, State Tax, Mobile Squad Unit, Kashipur, District Udham Singh Nagar, under Section 130 of the Central/Uttarakhand Goods and Services Tax Act, 2017 ( the Act ) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has been no finding that the petitioner was in connivance with the owner of the goods, therefore, without any connivance against the petitioner, imposition of penalty is illegal and against the law. It is the case of the petitioner that he was not at fault; his vehicle has illegally been detained. 4. Respondent nos. 1 and 2 filed their counter affidavit. Admittedly, the vehicle was intercepted on 15.01.1997 and the petitioner, who was driver also was not carrying the e-way bill, as required. According to the counter affidavit filed on behalf of respondent nos. 1 2, there was slightest discrepancy in the goods and the bill that was being carried by the vehicle. In para 8 16 of their counter affidavit, the respondent nos. 1 2 have stated as follows:- 8. That the proper officer being satisfied after considering the statement of the driver/person in charge of the vehicle, non-appearance of consignor or consignee, difference between the quantity of goods as declared and found after physical verification as well as due to the absence of e-way bill and looking into the past incidence where the supplier of the firm M/s Om International Company was found to be involved in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransported without generating e-way bill, which, according to respondent nos. 1 2, shows that there was a connection and connivance between the supplier and the transporter. Respondent nos. 1 2 also took a plea that the petitioner has an alternative efficacious remedy of filing an appeal under Section 107 of the Act. 6. Heard learned counsel for the parties and perused the file. 7. Learned Senior Counsel for the petitioner would submit that the impugned order is bad in the eyes of law. He would raise the following points in his submissions:- (i) The Act as such does not require generation of e-way bill. It is a requirement under Rule 138-A of the Central/Uttarakhand Goods and Services Tax Rules, 2017 ( the Rules ). (ii) Section 164 of the Act enables the Government to make Rules for carrying out the provisions of the Act. According to sub-section (4) of Section 164 of the Act, any rules made under this Section may provide that a contravention thereof shall be liable to a penalty not exceeding ten thousand rupees. It is argued that if the petitioner did not carry e-way bill as required under Rule 138-A of the Rules, the penalty is Rs. 10,000/-, as provided under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of such detention or seizure, then further proceedings would be initiated in accordance with the provisions of Section 130, i.e, for the purpose of confiscation. However, in such an eventuality, it would not be necessary for the department to establish any intention to evade payment of tax. Sub-clause (6) of Section 129 provides an eventuality, by which, it would be open for the authority to put the goods and the conveyance to auction and deposit the sale proceed thereof with the Government. (emphasis supplied) 183. We would sum up our conclusion of the points raised in the writ applications as follows; (i) Section 129 of the Act talks about detention, seizure and release of goods and conveyances in transit. On the other hand, Section 130 talks about confiscation of goods or conveyance and levy of tax, penalty and fine thereof. Although, both the sections start with a non-obstante clause, yet, the harmonious reading of the two sections, keeping in mind the object and purpose behind the enactment thereof, would indicate that they are independent of each other. Section 130 of the Act, which provides for confiscation of the goods or conveyance is not, in any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posited within the statutory time period, then the consequence of the same would be forfeiture of the goods and the vehicle with the Government. This does not necessarily imply that the confiscation proceedings can be initiated only in the event of the failure on the part of the owner of the goods or the conveyance in depositing the amount towards the tax and liability determined under Section 129 of the Act. 10. Learned counsel for the respondents would submit that inspection of goods in movement may be done under Section 68 of the Act. It is argued that under Rule 138A of the Rules, the person-in-charge of a conveyance should also carry e-way bill in physical form or e-way bill number in electronic form. It is argued that nothing was revealed by the petitioner, when intercepted, that the person-in-charge of the conveyance is different than the consignor. The learned counsel also raised the following points in his arguments:- (i) The goods were allegedly booked for U.P., but they were intercepted in Rudrapur, Uttarakhand, which does not fall in the route of Lakhimpur, where the goods were to be delivered. (ii) If the goods were to be unloaded in Uttarakhand, it is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of goods in contravention of the provisions of this Act or the rules made thereunder unless the owner of the conveyance proves that 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 penalty equal to hundred per cent. of the tax payable on such goods. 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 goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner has made reference to the definition of document as given in Section 2(41) of the Act. In fact, it merely shows that document includes written or printed record of any sort of electronic record as defined in clause (t) of section 2 of the Information Technology Act, 2000 (21 of 2000). It has less relevance in the instant case. 19. Section 68 of the Act, inter alia, provides as to which document the person-in-charge of a conveyance should carry while transporting the goods. Sub-section (3) of it speaks that if the conveyance is intercepted by the proper officer, he may require the person-in-charge of the conveyance to produce the documents prescribed. 20. The Rules have been made under Section 164 of the Act. Rule 138A of the Rules unequivocally requires that the person-in-charge of the conveyance shall also carry e-way bill. This is requirement of a Rule. It has the legislative sanction supported with Sections 68 and 164 of the Act. 21. Arguments have been raised that that contravention of the Rules may attract penalty under Sections 164(4) and 128(1)(xiv) of the Act. There may not be two opinions about it that Section 164 of the Act enables the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wner of the goods, who was required to generate the e-way bill and the petitioner is a transporter. This argument has less force. 26. Rule 138 of the Rules, inter alia, requires that every registered person, who causes movement of goods of consignment value exceeding fifty thousand rupees, shall, before commencement of such movement, furnish information relating to the said goods as specified in Part A of FORM GST EWB-001, electronically, on the common portal along with such other information as may be required. Sub-rule (3) of Rule 138 of the Rules makes it incumbent on the transporter to generate e-way bill. Sub-rule (3) of Rule 138 of the Rules reads as hereunder:- 138. Information to be furnished prior to commencement of movement of goods and generation of e-way bill. (1) . (2)..... (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 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 registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm filed a writ petition in this Court. 34. The impugned order dated 07.02.2023 is based on various factors. They are as follows:- (i) Transportation was done without e-way bill. (ii) Consignment note/bilti was not with the transporter. (iii) The consignor M/s Om International Company, Nagloi, West Delhi had earlier also transported goods without e-way bill, which was detected on 09.09.2022. (iv) The consignor firm s transaction reveals that the consignor firm had purchased from the firm, which was doubtful. (v) The consignor firm did not generate the e-way bill, so as to evade tax. (vi) The vehicle was not on its route to the destination. In fact, it was on the different route, which reveals the modus operandi. (vii) The route of the vehicle was inquired through RFID tracking system. It was found that the vehicle did not cross any toll plaza till it was intercepted, whereas from Delhi to Kashipur, there were various toll plazas. Therefore, the transaction was found doubtful. The petitioner has not clarified this aspect in his petition. (viii) The petitioner did not have the e-way bill. When the vehicle was intercepted, the statement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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