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TMI Blog2023 (10) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) and in absence of any provision being pointed out by the learned ACSC or any authority below that the goods (stock transfer) in transit were liable for payment of tax, no evasion of tax could be attributed to the goods in question. Once there was no intention to evade payment of tax, the entire proceedings initiated against the petitioner are vitiated and are liable to be set aside. The order passed by the Additional Commissioner, Grade 2 (Appeal), State Tax, Mathura as well as the order passed by the Assistant Commissioner, State Tax, Mobile Squad, Unit 4, Mathura cannot be sustained in law and the same are hereby quashed - Petition allowed. - Hon'ble Piyush Agrawal, J. For the Petitioner : Ankur Agarwal,Suyash Agarwal For the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,82,000/-. The petitioner submitted its reply stating that non-filling up of Part B of e-way bill was a mistake on the part of the transporter and as soon as the petitioner realized the mistake, e-way bill was updated and the Part B was filled up. Thereafter, on 16.05.2018, the respondent no. 2 passed the penalty order under section 129(3) of the UPGST Act. Against the penalty order, the petitioner preferred an appeal before the respondent no. 1, which also dismissed vide impugned order dated 23.02.2019 affirming the penalty order dated 16.05.2018. Hence, this writ petition. 5. Learned counsel for the petitioner submits that the petitioner, being a registered dealer, is adhering to the provisions of GST in letter and spirit. In the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions, he has placed reliance on the judgement of this Court in Shyam Sel Power Limited Vs. State of U.P. [(2023) 11 Centax 99 ) All)] as well as the judgement of the High Court of Telangana in M/s Same Deutzfahr India P Limited Vs. State of Telangana [Writ Petition No. 13392/2020, decided on 23.09.2020]. He prays for allowing the writ petition. 6. Per contra, learned ACSC supports the impugned orders and submits that at the time of interception of the goods in question, genuine documents were not produced as required under rule 138 of the GST Rules as the e-way bill, part 'B' was not filled up and therefore, the proceedings have rightly been initiated against the petitioner. He further submits that in the event the goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty order has been confirmed. 9. The record further reveals that in pursuance of the show cause notice, the petitioner filed reply along with duly filled up Part 'B' of e-way bill. Once it was brought to the notice of the authorities that the discrepancy, which was pointed out, was rectified before passing of the seizure order, the authority ought to have taken a lenient view in the facts circumstances of the present case. 10. In the present case, the goods were sent from one unit to another. Learned ACSC could not point out any provision under the GST Act, which could show that while stock transfers are made within the State of Uttar Pradesh from one unit to another, i.e., Agra to Mathura, the tax is to be charged as the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 129(3) of the CGST Act. 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 manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion could not be taken to the destination within time for the reasons beyond the control of the writ petitioners. 13. Further, the High Court of Telangana in M/s Same Deutzfahr India P Limited (supra) has held as under:- 14. Once it is clear that petitioner has additional place of business in the State of Telangana in Bongulur village, Ibrahimpatnam Mandal and the goods were being transported to that address from its Corporate office at Ranipet, Tamil Nadu State, it cannot be said that the petitioner was indulging in any illegal activity when the tax invoice shows that the supplier is the petitioner's Corporate office in Ranipet, Tamil Nadu State and that it was shipped to its Depot in Bongulur village in Ibrahimpatnam Mandal. 15. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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