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TMI Blog2023 (10) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... . The words applicable tax has now been deleted from this provision. Goods are to be transported alongwith certain documents as specified under the Act. If every non-compliance in respect of the documents that a vehicle should carry may attract the provisions of Section 129 of the Act, what would be those situation in which the provisions of Section 122 of the Act may be invoked? A bare reading of Section 130 of the Act, makes it clear that here what is to be established that (i) there has been non-compliance of the provisions of the Act, which leads to the evasion of the Tax and further the evasion of tax was intentional - initially when Section 129 of the Act was enacted, the legislature had considered that there was some tax element, which was to be addressed before the release of the vehicle. Section 122 of the Act, on the other hand, is simpliciter. Section 122 (xiv) of the Act makes one liable to some penalty if a person transports any taxable goods without the cover of the documents as may be specified in this behalf. It has no tax element. In the instant case, there has been no evasion of tax. There has been no intention to evade tax. Every information was with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in transportation. In these petitions, those two orders dated 09.06.2023 have been challenged. The petitioner also seeks refund of the amount which was deposited on 10.06.2023 pursuant to the impugned orders dated 09.06.2023. 4. It is the case of the petitioner that the imposed penalty is illegal and it has been passed without appreciating the fact that the petitioner had already ensured all the compliances under the Act. He had all the documents with him except the delivery challan. 5. Instant petition was admitted on 24.08.2023, when the Court directed the respondents to file counter affidavit with further direction to the petitioner to file rejoinder, if any. The Court passed the following order on that date:- Respondents may file counter affidavit within two weeks. One week thereafter, rejoinder affidavit, if any, be filed. List this matter for final hearing on 20.09.2023, after fresh, as the first case. No time extension for filing pleadings shall be given to any of the parties. Parties are requested to adhere by the time given for filing proceedings. 6. On the next date of hearing i.e. 20.09.2023, it was revealed that the respondents d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of non-compliance of the provisions with regard to generation of e-way bill, necessarily the provision of Section 129 of the Act may be invoked, but not in case of minor infraction. (iii) In the instant case, there is no allegation or chance of evasion of tax. GST authorities were told of the transactions, firstly, when the goods were transported from Kolkata to Kanpur through railway route and thereafter, from Kanpur, when e-way bills were generated for the vehicles. Each and every information was available with the GST authorities. Tax has been paid. Therefore, it is argued that the impugned orders are bad in the eye of law. 10. Learned counsel would refer to the principles of law, as laid down in the cases of Satyam Shivam Papers Pvt. Ltd. Vs. Assistant Commissioner ST and others, (2021) 92 GSTR 154, Daya Shanker Singh Vs. State of Madhya Pradesh (2022) 94 GST 233 (MP), Smart Roofing Private Limited Vs. State Tax Officer, 2022 (62) GSTL 29, Algae Labs Private Limited Vs. State Tax Officer-I, Tirunelveli, 2022 (64) GSTL 272 and Varun Beverages Vs. State of UP, 2023 (71) GSTL 4. 11. In the case of Satyam Shivam Papers Ltd. (supra), a vehicle was intercepted an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to evade tax accordingly. The principles of law, as laid down in the case of Smart Roofing Pvt. Ltd. (supra) were followed in the case of Algae Labs Private Limited (supra). 15. In the case of Varun Beverages (supra), there was an error in the vehicle registration number. The proceedings under Section 129 of the Act were initiated, which were challenged. The Hon ble Court held that as there is no dispute to the fact that it is a case of stock transfer and there is no intention on the part of dealer to evade any tax, the minor discrepancy as to the registration of vehicle in State in the e-way bill would not attract proceedings for penalty under Section 129, . 16. On the other hand, learned counsel for the State would discuss the scheme of the Act. He would submit that the requirement of procedure, as given under the Act, tends to ensure that there are no leakages; if the process is not followed, it may likely lead to leakages. He would raise the following points in his submission:- (i) Breach of procedure requirement cannot be condoned, if it may facilitate fraud, escape, leakage and administrative inconveniences. (ii) Procedural requirement in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rules made thereunder; ......................................................................... ......................................................................... ......................................................................... ......................................................................... (xiv) transports any taxable goods without the cover of documents as may be specified in this behalf; ............................................................................ ............................................................................ ............................................................................ he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short collected or collected but not paid to the Government or input tax credit availed of or passed on or distributed irregularly, or the refund claimed fraudulently, whichever is higher. .............................................................. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released, (a) on payment of the applicable tax and penalty equal to one hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty; (b) on payment of the applicable 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: ............................................................................ .................. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be or may be made by rules. (3) The power to make rules conferred by this section shall include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Act come into force. (4) Any rules made under sub-section (1) or sub-section (2) may provide that a contravention thereof shall be liable to a penalty not exceeding ten thousand rupees. 24. Reference has also been made to Rules 55 and 138 of the 2017 Rules. Rule 55 Sub-Rule (3) and Rule 55 Sub-rule (5) are as follows:- 55. Transportation of goods without issue of invoice. - (1) For the purposes of- (1).............................................................. (2).............................................................. (3) Where goods are being transported on a delivery challan in lieu of invoice, the same shall be declared as specified in rule 138. (4)............................................................... (5) Where the goods are being transported in a semi knocked down or completely knocked down condition or in batches or lots- (a) the supplier shall issue the complete invoice befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geable. It is also argued that there remains no other information with regard to the goods, which may not be found in any of these two documents. 29. During the course of hearing, the Court wanted to know from the learned State counsel as to what additional information the delivery challan may have? 30. Learned State counsel would submit that the delivery challan may be accompanied separately by each of the vehicle. It has not been indicated that the delivery challan contains any additional information. 31. Admittedly, the petitioner had generated e-way bills pertaining to both the vehicles. The vehicles were carrying invoices, e-way bills and bilty. It is not a case of tax evasion. All the dues had already been paid, including the tax. Documents have been referred to by the learned counsel for the petitioner to indicate that after tax had been paid, on the direction of SAIL, the goods were handed over to the petitioner at Kanpur. 32. The question that falls for consideration is as to whether this situation may invoke the provisions of Section 129 of the Act? It is not a case of evasion of tax. It is not a case that the delivery challan was not taken with the intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific The principle is expressed in the maxims generalia specialibus non derogant and generalibus specialia. Similarly, Craies in Statute Law states: The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. Where two provisions conflict, courts may enquire which of the two provisions is specific in nature and whether it was intended that the specific provision is carved out from the application of the general provision. The general provision operates, save and except in situations covered by the specific provision. The rationale behind this principle of statutory construction is that were there appears a conflict between two provisions, it must be presumed that the legislature did not intend a conflict and a subject- specific provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty if a person transports any taxable goods without the cover of the documents as may be specified in this behalf. It has no tax element. 39. A bare reading of the Section 122 of the Act makes it abundantly clear that mere non-production of document is punishable herein. 40. The arguments made on behalf of the State does not merit acceptance that this provision under Section 122 of the Act would not apply, when the vehicle is intercepted. 41. Undoubtedly, Section 129 of the Act begins with non obstante clause. Detention, search and seizure may be done. But what followed after such detention. Every detention may not invariably proceed under Section 129 of the Act. This has further been confirmed by virtue of the Circular 94 issued by Government of India, which gives certain conditions, if there are some typographical errors etc. Even after detention, this circular reads that instead of proceeding under Section 129 of the Act, the Revenue may proceed under Section 126 of the Act. 42. Every interception of the vehicle, in contemplation with non-compliance of the provisions of the Act, under Section 129 of the Act does not mandatorily require that the procedure and penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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