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TMI Blog2023 (8) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... the case are that the appellant is engaged in the business of transportation of goods by road and holding GSTIN 29AGSPB7424K2ZW. The appellant's consignment loaded in vehicle No. RJ-14GF-8592 was intercepted and detained by Sh. Rajbir Mahant, Asstt. Excise & Taxation Officer (Enforcement)-cum-Proper Officer of State Tax, Gurugram (North) on dated 20.05.2018 at 11.10 P.M. at Gurugram under Section 68 (3) of the CGST Act, 2017 read with Section 68 (3) of the HGST Act, 2017 and Section 20 of the IGST Act by issuing seizure memo No. 0095 Sr. No. 47 (Annexure P-18). The vehicle was carrying goods of mixed scrap i.e. copper, aluminium and bead scrap. On demand, the driver-cum-person incharge of the goods produced Invoice Nos. 32, 33, 34, 35 and e-way bill Nos. 531030092131 and 561030091616 dated 26.04.2018 issued by M/s Hari Om Enterprises, Krishnagiri (Tamilnadu) GSTIN-33GHWPS3181R1Z3 alongwith GR No. 164, 165, 166, 167 dated 26.04.2018 issued by M/s Bright Road Logistics, Salem, showing description of goods mixed metal scrap i.e. copper, aluminium and bead scrap. 2.1 The petitioner filed reply dated 23.05.2018 (Annexure P-19) to the said seizure memo. Another show cause notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while passing the order dated 12.06.2018 (Annexure P-24) under Section 130 of the GST Act, 2017 observed that driver-cum-person incharge of the vehicle produced old documents dated 26.04.2018 showing transaction Tamil Nadu to Delhi, whereas, the driver stated that he has loaded the goods in question from Bengaluru, Karnataka on 14.05.2018. It was also observed that vide order dated 29.05.2018, the applicable tax and penalty were demanded. However, neither the owner of the goods nor the person incharge of the transport came forward to make the payment of the said amount. Therefore, notice was issued on 06.06.2018 proposing to confiscate the goods. The reply filed by the petitioner was considered while passing the order for payment of tax, penalty and fine in lieu of confiscation of goods and conveyance and further confiscating the goods and conveyance of goods, payment of the said amount. 5. The appellate authority considered the preliminary objections raised by the counsel for the appellant regarding the competency of the Haryana State Tax Officer to seize the goods, demand tax and impose penalty under the CGST Act and IGST Act, 2017. The said objection was overruled by making th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters covered by the IGST Act, 2017 on the subject of inspection, search, seizure and arrest. Chapter XIV of the CGST Act, 2017 deals with inspection, search, seizure and arrest. Section 67 of the CGST Act, 2017 deals with the power of inspection, search and seizure, and Section 68 of the CGST Act, 2017 deals with inspection of goods in movement. In this view of the matter, I am of the considered opinion that cross-empowerment under Section 4 of the IGST Act, 2017 and Section 6 of the CGST Act 2017 means that State Authorities empowered under the HGST Act, 2017 can also enforce the provisions of the CGST Act, 2017 or IGST Act, 2017. My viewpoint finds support from the judicial pronouncements of Hon'ble High Court of Madhya Pradesh in the case of M/s Advantage India Logistics Pvt. Ltd. Vs. The Union of India and others dated 23.08.2018 in Writ Petition No. 16266 of 2018 reported as (2018) 58 GSTR 247 (MP), and Hon'ble Allahabad High Court in the case of M/s Satyondre Goods Transport Corp. Vs. State of U.P. and Others dated 13.04.2018 reported as (2018) 54 GSTR 3 (All)." 5.1 While dealing with the provisions of Section 129 and 130 of the CGST Act, 2017, the appellate aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. We have heard the counsel for the parties. 9. Learned counsel for the petitioner submitted that on 26.04.2018, the petitioner booked a consignment mixed scrap, weighing approximately 15,500 kg from Salem, located in the State of Tamil Nadu, to be delivered to GST dealer(s) of Delhi and for the said purpose, he hired the vehicles of respondent No. 7-M/s Jupiter Express Carriers Private Limited. The goods were loaded from the State of Tamil Nadu on 26.04.2018 for inter-State transaction and all the documents prescribed under Section 68 of the GST Act, 2017/IGST Act, 2017 were carried. The vehicle reached at Bangalore on the same day. The said truck bearing No. RJ-14-GF-8592 owned by respondent No. 7 got another tender for urgent delivery of coconuts as such, the said truck loaded the coconuts from KR Pet at Bangalore on 27.04.2018 and reached Delhi on 30.04.2018. On 01.05.2018, some parcels alongwith other goods were transported from Delhi to Bangalore in the same truck. The said truck reached Bangalore on 05.05.2018. Thereafter, on the next day, it transported goods from Bangalore to Delhi and reached Delhi on 10.05.2018. The said truck loaded consignment of the petitioner's go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 12. The appellate authority while passing the impugned order (Annexure P-1) has dealt with a preliminary objection by discussing the history of new direct taxation regime including the applicability of IGST Act, 2017 for inter-State trade and commerce and held that in view of the provisions of Section 4 of the IGST Act, 2017 and Section 6 of the GST Act, 2017, the State authorities are empowered under the HGST Act, 2017 and they can also enforce the provisions of the CGST Act, 2017 and IGST Act, 2017. 13. In the written statement, the respondents have taken a specific stand in a reply to para Nos. 32 (xvi) and (xvii) that AETO (Enf.)-cum- Proper Officer of State Tax is duly empowered to check the goods and vehicle in inter-State transactions as per the provisions of Section 6 (1) of the CGST Act, 2017 and as per powers delegated under Section 4 of the IGST Act, 2017. It has also been submitted in the written statement that cross-empowerment and delegation of powers to State Tax Officers appointed under MPGST Act has been upheld as per the decision dated 27.08.2018 by the High Court of Madhya Pradesh Bench at Indore in writ petition No. 16266-2018 in the matter of Advantag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons including the provisions relating to the imposition of interest and penalty, shall, mutatis mutandis, apply, so far as may be, in relation to integrated tax as they apply in relation to central tax as if they are enacted under this Act. Provided that in the case of tax deducted at source, the deductor shall deduct tax at the rate of two percent from the payment made or credited to the supplier. Provided further that in the case of tax collected at source, the operator shall collect tax at such rate not exceeding two percent, as may be notified on the recommendations of the Council, of the net value of taxable supplies. Provided also that for the purposes of this Act, the value of a supply shall include any taxes, duties, cesses, fees and charges levied under any law for the time being in force other than this Act, and the Goods and Services Tax (Compensation to States) Act, if charged separately by the supplier. Provided also that in cases where the penalty is leviable under the Central Goods and Services Tax Act and the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, the penalty leviable under this Act shall be the sum total of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sections 20 and Section 4 of the IGST Act; as well as the order dated 07.12.2017 (Annexure P-46) passed by the Excise & Taxation Commissioner, Haryana, assigning the functions to the Proper Officer under the Haryana Goods & Services Tax Act, 2017, we are of the considered opinion that the Asstt. Excise and Taxation Officer of State Tax is competent and authorized to exercise the powers under Section 129 and 130 of the IGST Act, 2017. 22. As such the first point for determination is accordingly, answered that the Asstt. Excise & Taxation Officer of State Tax was authorized to Act as a Proper Officer and was having the authority to act under Section 129 and 130 of the IGST Act. The decision of the appellate authority in this regard requires no interference. Question No. 2 23. As per the version of the petitioner, the petitioner firm is dealing with transport business, booking of goods of the dealer and transporting the goods by hiring transport from the market. On 26.04.2018, mixed scrap was booked from Tamil Nadu. Respondent No. 7 provided the transportation but it was temporarily unloaded at Bangalore on the same day and finally, when it was being transported from Bangalore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mala-fide intention to evade the legitimate due tax to the Government of Coffers. 26. Before appreciating the factual aspects concluded by the Proper Officer and upheld by the appellate authority, some of the pros & cons under the GST Act, 2017 and IGST Act, 2017 are required to be considered which have been dealt with by a Coordinate Bench of this Court in CWP-18392-2021 titled as M/s Shiv Enterprises Vs. State of Punjab and others decided on 04.02.2022 and the same are reproduced as under:- '14. Enactment of CGST Act 2017 has marked arrival of new tax regime. The 2017 Act is said to be an Act to make provision for levy and collection of tax on inter-state supply of goods and services or both by the Central Government and for matters connected therewith or incidental thereto. For the case in hand, we are concerned with the provisions related to goods in transit and those related to input tax credit. Input Tax: 15. As per Section 12 of the 2017 Act, the liability to pay tax on goods arises at the time of supply as determined in accordance with the provisions. Section 7 determines scope of supply. The Act further talks of inward supply and outward supply. Corresponding to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of supply, the person receiving inward supply pays value of such supply which includes GST. As per Section 12 of 2017 Act, the liability to pay tax on goods shall arise at the time of supply. The person receiving inward supply discharges the incidence of GST and becomes eligible to claim credit of the input tax paid. But his claim is subject to adjudication. 17. Section 31 provides that a registered person supplying taxable goods shall, before or at the time of removal of goods for supply to the recipient, where the supply involves movement of goods, issue a tax invoice showing the description, quantity and value of goods, the tax charged thereon and such other particulars as may be prescribed. Section 43A provides procedure for furnishing return and availing input tax credit. It provides that notwithstanding anything contained in Section 16(2), Section 37 or Section 38, every registered person shall in the return furnished under sub-Section (1) of Section 39 verify, validate, modify or delete the details of supplies furnished by the suppliers. It further provides that the procedure for furnishing the details of outward supply by supplier on the common portal for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to carry invoice or bill of supply or delivery challan and a copy of e-way bill in physical form or electronic form. These documents are required to be produced when the goods are intercepted by Proper Officer.' 27. Rule 138 of the CGST Act, 2017 provides that every registered person who causes movement of goods and consignment value of exceeding Rs.50,000/- shall before commencement of said movement, generate e-way bill by way of furnishing information relating to the said goods as specified in Part A of FORM GST EWB-01, electronically, on the common portal alongwith such other information as may be required on the common portal. The said rule further provides that a transporter on receiving an authorization from the registered person may furnish information on Part A of Form GST EWB-01 electronically on the common portal. The relevant portion of the said Rule is reproduced as under:- "CHAPTER XVI, E-WAY RULES Rule 138. Information to be furnished prior to commencement of movement of goods and generation of e-way bill (1) Every registered person who causes movement of goods of consignment value exceeding fifty thousand rupees- (i) in relation to a supply; or (ii) f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices. We have perused the said annexures. Annexures P-2 to P-4 are copies of the invoice dated 27.04.2018. Annexure P-6 is also copy of a cash bill dated 06.05.2018. None of these documents is an e-way bill which would ensure that the information was uploaded on the central portal. In pursuance of the aforesaid rule, e-way bill was not generated for any of these alleged transactions despite the fact that the value of the supply alleged in Annexure P-3 is more than Rs. 50,000/-. 30. Since, the documents relied upon by the petitioner in support of his contention that the scrap was unloaded at Bangalore and remained stationed there from 26.04.2018 to 14.05.2018 due to use of the said vehicle for the purpose of carrying/transporting the other goods are not authentic documents nor any e-way bill has been produced to show the movement of the said vehicle as such these documents have been rightly ignored by the Proper Officer. More so, when it was observed that the quantity of the scrap mentioned in the documents produced by the driver vary from the quantity of the documents which was being carried at the time of interception of the vehicle, as such keeping in view a long delay in be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable 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 rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty; (c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. (2) The provisions of sub-section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances. (3) The 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). (4) No tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. (5) On payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conveyance or the person referred to in sub-section (1), shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance. (4) No order for confiscation of goods or conveyance or for imposition penalty shall be issued without giving the person an opportunity of being heard. (5) Where any goods or conveyance are confiscated under this Act, the title of such goods or conveyance shall thereupon vest in the Government. (6) The Proper Officer adjudging confiscation shall take and hold possession of the things confiscated and every officer of Police, on the requisition of such Proper Officer, shall assist him in taking and holding such possession. (7) The Proper Officer may, after satisfying himself that the confiscated goods or conveyance are not required in any other proceedings under this Act and after giving reasonable time not exceeding three months to pay fine in lieu of conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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