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TMI Blog2023 (10) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... , has informed the authorities about the attending circumstances, but without considering the same, the impugned order under section 129(3) of the SGST Act has been passed. This Court in the case of M/S SHYAM SEL AND POWER LIMITED VERSUS STATE OF U.P. AND 2 OTHERS [ 2023 (10) TMI 218 - ALLAHABAD HIGH COURT] has held Upon a purposive reading of the sections 129, 130 and 138, it would suffice to state that the legislation makes intent to evade tax a sine qua non for initiation of the proceedings under sections 129 and 130 of the CGST Act. The Punjab Haryana High Court, in M/S RAGHAV METALS VERSUS STATE OF HARYANA AND OTHERS [ 2022 (3) TMI 682 - PUNJAB HARYANA HIGH COURT] has held Keeping in view these circumstances, it cannot be said that the petitioner had any intent to evade the tax or the mismatch in the quantities is of such nature which shall entail proceedings under Section 129 of the Act. In view of the facts circumstances stated above as well as the law laid down by the Apex Court as well as this Court, the impugned orders cannot be sustained in the eyes of law - impugned order passed by the respondent no. 2 as well as the impugned order passed by the respondent no. 3 are her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners submits that on receipt of the purchase order form Nashik, Maharashtra, tax invoice was raised, but the e-way bill could not be generated as there was some technical glitch. He further submits that for filling up the e-way bill, Railway Receipt number was required and therefore, on 18.11.2022, in the evening, the petitioner went to the Kanpur Railway Station for arranging the entire booking process and to obtain Railway Receipt number for generating the e-way bill and asked the e-rickshaw driver to wait outside the railway station itself. When the goods were intercepted, the e-rickshaw driver duly informed to the GST authorities that the owner of the goods, along with paper, is inside the railway station for getting the Railway Receipt prepared, but without waiting or cross-checking the said fact, the respondent authorities not only confiscated the goods, but also issued show cause notice on 24.11.2022. He further submits that a detailed reply was given by the petitioners narrating the said facts, but without considering the same, the impugned penalty order has been passed. He further submits that there was no intention of the petitioner to evade payment of tax and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or confiscated, the petitioners would have succeeded in its motive of not entering the transaction in question in its books of account. He prays for dismissal of the writ petition. 7. After hearing the learned counsel for the parties, the Court has perused the records. 8. Admittedly, the goods were intercepted and confiscated outside the railway station. The goods were loaded in e-rickshaw and the driver of the e-rickshaw had duly informed the authorities that the owner of the goods, along with documents, is inside the railway station and requested for waiting, but the respondents, in their wisdom, have neither cross-checked the said fact nor waited for the Proprietor of the petitioner firm to come out. On the contrary, the goods have been confiscated and show cause notice was issued. When the petitioner came to know about this fact he tried to show the documents, but in vain. The petitioner on the very day, i.e., on 24.11.2022, submitted a detailed reply narrating the following averments:- Since the E-way bill portal was not running due to technical reason so I went to Central railway station for arranging the booking of my goods and taking RR No. of the central railway goods f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities about the attending circumstances, but without considering the same, the impugned order under section 129(3) of the SGST Act has been passed. 12. This Court in the case of M/s Shyam Sel Power Limited (supra) has held as under:- 10. For invoking the proceeding under section 129(3) of the CGST Act, section 130 of the CGST Act was required to be read together, where the intent to evade payment of tax is mandatory, but while issuing notice or while passing the order of detention, seizure or demand of penalty, tax, no such intent of the petitioner was observed. Once the dealer has intimated the attending and mediating circumstances under which e-way bill of the purchasing dealer was cancelled, it was a minor breach. The authority could have initiated proceedings under section 122 of the CGST Act instead of proceedings under section 129 of the CGST Act. Section 129 of the CGST Act must be read with section 130 of the said Act, which mandate the intention to evade payment of tax. Once the authorities have not observed that there was intent to evade payment of tax, proceedings under section 129 of the CGST Act ought not to have been initiated, but it could be done under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not the owner of the goods is patently erroneous. Consequently, the penalty proceedings were liable to be initiated under Section 129(1)(a) and not 129(1)(b) as has been done in the present case. In view of the above, expressing our full agreement with the view expressed by the Coordinate Bench of this Court in the case of M/s Sahil Traders (Supra) we set aside the impugned penalty order dated 17.06.2023 passed in Form MOU-09 under Section 129(1)(b) of the Goods and Services Tax Act, 2017. The writ petition is allowed. 14. The Punjab Haryana High Court, in M/s Raghav Metals (supra) has held as under:- 9. Keeping in view these circumstances, it cannot be said that the petitioner had any intent to evade the tax or the mismatch in the quantities is of such nature which shall entail proceedings under Section 129 of the Act. A person, who has already paid a tax of Rs. 1276717.68/- on a consignment cannot be said to have an intent to evade tax amounting to Rs. 11000/-. At this stage, Mr. Goyal states that the petitioner is ready to pay even the tax and penalty imposed by the State-Authorities which comes to be around Rs. 22000/-. 10. In light of the fair stand taken by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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