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TMI Blog2023 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... exempted goods, on payment of an amount equal to two percent of the value of the goods or twenty-five thousand rupees, whichever is less. In the instant case, the allegation that the goods were intended for export and were not exingable to tax not being under dispute, it is opined that the contention of the respondents that the penalty payable is as calculated in Exhibit P5 cannot be accepted under any circumstances. Since the instant case involves a palpable erroneous exercise of jurisdiction and would result in miscarriage of justice, if this Court declines jurisdiction, the further contention that the petitioner ought to have availed the statutory remedy of appeal before approaching this Court also cannot be accepted. Exhibits P5 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the E-way bill could not be generated in time. Thereafter, the 2nd respondent issued Ext. P5 order which was served on 31.05.2001 by e-mail demanding tax and penalty totaling to an amount of Rs. 8,68,736/- from the petitioner. Thereafter notice in FORM GST MOV-10 proposing to confiscate the goods and the vehicle and demanding tax and penalty and fine in lieu of confiscation of goods and conveyance dated 11.06.2021 is also served as Ext. P6. 3. The learned counsel for the petitioner submits that since the goods in transit were for export, such goods were not liable to tax and the finding in Ext. P5 that the goods are not exempted is not correct or legal. It is submitted that Section 129(1)(a) of the CGST Act provides for release of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10 pm while it was carrying frozen processed shrimps and was traveling from Aroor to Cochin Port. It is submitted that Rule 138A provides that the person in charge of a conveyance should carry an invoice or bill of supply or delivery challan as the case may be and an E-way bill. It is submitted that only Ext. P1 invoice was produced by the driver at the time of interception and no E-way bill accompanied the transport. It is submitted that in Ext. P4 reply submitted by the petitioner the transportation without E-way bill was admitted and was sought to be justified on the ground that the goods were exempted goods meant for export to China and the E-way bill could not be generated due to the triple lock down imposed due to Covid. 5. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord a notification dated 28th June, 2017 notifying the rate of tax in respect of different commodities. It is submitted that crustaceans, whether in shell or not, frozen, dried, salted or in brine.; crustaceans in shell cooked by steaming or by boiling in water, frozen, dried, salted in brine; flours, meals and pellets of crustaceans fit for human consumption are included at sub heading 0306 of Schedule 1 and is liable to tax at 2.5%. It is further submitted that Vannamei Shrimp which was the specific item transported by the petitioner is assigned with specific HSN Code of 030617 and the said commodity is taxable at the rate of 5%. It is submitted that all these aspects are specifically stated in the communications issued to the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench of this Court in The Assistant Sales Tax Officer and another vs. M/s. Indus Towers Limited [W.A. No. 371 of 2018] is also relied on to contend that the provisions of the Goods and Services Tax Act and the Rules framed thereunder have to be treated with the rigor it intends as against any violation; without reference to any mens rea contumacious conduct or even a suspicion of attempt to evade tax. In the light of the non-obstante clause in Section 129, it is held that detention is provided in case of any contravention of the provisions of the Act and the Rules and the release of the goods so detained can be effected only on satisfying the provisions of either (a),(b) or (c) of sub-section 1 of Section 129. 11. A later judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention that where an efficacious alternative remedy is provided for by the statute itself, the said remedy can be bypassed only if palpable injustice would result if the extraordinary original jurisdiction of the High Court is not exercised. 13. Having considered the contentions advanced, I notice that the fact that the commodity in question was frozen shrimp and was being transported to the Cochin port for export is not disputed by the respondents. The only allegation is that the person in charge of the conveyance could not produce valid E-way bill and letter of undertaking at the time of the detention. Ext. P4 attempts to explain the reason why an E-way bill did not accompany the conveyance. 14. The discrepancies noticed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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