9911796707
TMI Blog2024 (1) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... ransporting the goods. Moreover, the CGST and the SGST were already charged by SAIL. Therefore, no intention to evade tax is evident in this case. In the present factual matrix, it is clear that the goods were accompanied by the tax invoices. Furthermore, the tax invoices contained the details of the vehicle that was transporting the goods. It is further to be noted that one e-Way Bill was generated before the detention and one subsequent to the detention, but before passing of the order under Section 129(3) of the UPGST Act, 2017/CGST Act, 2017. Under these circumstances, there does not appear to be any intention to evade the tax - the petitioner cannot be made to suffer due to mere technical mistakes that may have arisen, without there being any intention to evade tax. The impugned orders in the instant case are a result of the Respondent No. 2 and the Respondent No. 3 exceeding their jurisdiction and not proceeded in accordance with the essential requirement of the law where it was meant to adminiter. Therefore, a writ of certiorari is warranted in the instant case. Accordingly, let there be a writ of certiorari issued against the order dated February 21, 2019 passed by the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice as well as passing of the order under Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as the UPGST Act, 2017 ). However, the said e-way Bills were not taken into consideration by the Respondent No. 2. e. The supplier SAIL had generated Invoices Nos. OS0020005822 and OS0020005823, both dated February 17, 2019 wherein the quantity, description of goods and the vehicle number were mentioned. The petitioner states that the transportation of the goods on the same day was not possible due to the barrier imposed by the local administration for transportation, due to the occasion of Maghi Purnima, Kumbh Mela, 2019 . These goods were transported on February 20, 2019 from SAIL Yard, Naini to Lookerganj, Allahabad. f. Show Cause Notice (FORM GST MOV - 07) was issued to the petitioner under Section 129(3) of the UPGST Act, 2017 on February 21, 2019 alleging that the movement of the goods was in contravention to the provisions of the UPGST Act, 2017. The said Show Cause Notice required the petitioner to show cause as to why tax of an amount of INR 1,29,862/- along with an equivalent penalty of INR 1,29,862/- ought not to be recovered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to arise. d. In response to the appeal filed before the Respondent No 3, it had issued a notice for personal hearing, wherein it had fixed the date of hearing on July 26, 2019. In response to this notice, the counsel of the petitioner appeared before the Respondent No. 3. Thereafter, the Respondent No. 3 had adjourned the date for hearing to October 10, 2019. Owing to some unavoidable reasons, the counsel of the petitioner failed to appear before the Respondent No. 3 as well as the counsel of the petitioner forgot to inform the petitioner about the said date of hearing. Thereafter, the Respondent No. 3 passed an ex parte order on October 20, 2019, in all haste and hurry coupled with malafide intentions. The said act of the Respondent No. 3 is in gross violation of the principles of natural justice and against the provisions of Sections 107 (8), 107 (9), and 107(10) of the CGST Act, 2017 and the UPGST Act, 2017. e. Although the Respondent No. 3 passed an ex-parte order on October 20, 2019 within 10 days from the last hearing date the same was served to the petitioner only on March 20, 2020, that is after five months from the date of the passing of the said order. This shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanded only when the goods are liable for confiscation, which can be only when the same are transported in contravention of the provisions of the UPGST Act, 2017/CGST Act, 2017 and the rules framed thereunder along with the intention to evade the payment of tax. In the instant case, there cannot be any intention to evade the payment of tax as the CGST and the SGST were already charged by SAIL and payments were also made. Additionally, the vehicle number was mentioned in the invoices and during the physical verification of the goods, no discrepancy was found. m. In support of its contentions, the petitioner also relies on the judgment of this Court in M/s Axpress Logistics India Pvt Ltd. v. Union of India (Writ Tax No. 602 of 2018). Contentions of the Respondents 4. Shri Rishi Kumar, learned Additional Chief Standing Counsel, appearing on behalf the respondents, has made the following submissions: a. At the time of inspection, e-Way Bill, which is mandatory, was not generated. This is a clear violation of the Rule 138(a) of the UPGST Rules, 2017. As per Rule 138 of the UPGST Rules, 2017, e- Way Bill should mandatorily be generated before starting the movement of the vehicle and ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of none mentioning of the vehicle no. in Part-B cannot be a ground for seizure of the goods. We hold that the order of seizure is totally illegal and once the petitioner has placed the material and evidence with regard to its claim, it was obligatory on the part of respondent No. 2 to consider and pass an appropriate reasoned order. In this case, no reasons are assigned nor any discussion is mentioned in the impugned order of seizure and notice of penalty. Respondent No. 2 has also not considered the above notification dated March 7, 2018. 15. In view of the aforesaid facts, the impugned seizure order dated April 9, 2018 passed under section 129 (1) and also the consequential show-cause notice dated April 9, 2018 passed/issued under section 129(3) of the Act are quashed. The respondents are directed to release the goods as well as vehicle, seized on April 9, 2018, forthwith in favour of the petitioner. 8. In the instant case before me, although the petitioner failed to generate the e-Way Bill on time, the Tax Invoices issued contained all the relevant details including the detail of the vehicle transporting the goods. Morever, the CGST and the SGST were already charged by SAIL. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and no intention to evade tax, then penalty cannot be levied. Relevant paragraph has been extracted below - 11. On perusal of the impugned order it is also found that it is categorically mentioned that the origination as well as termination of the goods in question was in State of Madhya Pradesh meaning thereby the authorities are of the view that the goods were not to be unloaded in the State of UP or any intention to avoid tax. However, mainly on the ground of some small technical fault for not carrying the e-way bill, the penalty ought not to have been levied in the absence of any discrepancy in document accompanying the goods. In view of above, the impugned orders cannot be sustained in the eyes of law. 11. In Roli Enterprises v. State of UP and Others reported in [2024] 158 taxmann.com 468 (Allahabad) this Court noted that the non - generation of Part B of e-Way Bill was a mere technical error, and since the invoice contained the details of the vehicle transporting the goods, there was no intention on part of the petitioner therein to evade tax. Accordingly, the penalty levied in the said case, was held to be unjustified. 12. In Modern Traders v. State of U.P. and Others rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention and seizure of the goods and vehicle. Even though, in the case before me, the petitioner generated one e-Way Bill subsequent to the detention of goods, the other e-Way Bill was generated before the detention of goods. In any case, both the e-Way Bills were produced by the petitioner before the order imposing penalty was passed. 15. What emerges from a perusal of the aforesaid judgments is that, if penalty is imposed, in the presence of all the valid documents, even if e-Way Bill has not been generated, and in the absence of any determination to evade tax, it cannot be sustained. Order dated February 21, 2019 passed by the Respondent No. 2 and the order dated October 20, 2019 passed by the Respondent No. 3, in the instant case stand on a foundation less ground, since there is no intention to evade tax, which could sustain the impugned orders. 16. In the present factual matrix, it is clear that the goods were accompanied by the tax invoices. Furthermore, the tax invoices contained the details of the vehicle that was transporting the goods. It is further to be noted that one e-Way Bill was generated before the detention and one subsequent to the detention, but before passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statutory appeal. Respondent No. 3 records that while the provisions under the Uttar Pradesh Value Added Tax Act, 2008 (hereinafter referred to as the UPVAT Act, 2008 ) mandated establishing a prior intent to evade tax, there was no such provision in the CGST Act, 2017/UPGST Act, 2017. This reasoning is palpably erroneous. A penal action devoid of mens rea not only lacks a solid legal foundation but also raises concerns about the proportionality and reasonableness of the penalties imposed. The imposition of penalties without a clear indication of intent may result in an arbitrary exercise of authority, undermining the principles of justice. Tax evasion is a serious allegation that necessitates a robust evidentiary basis to withstand legal scrutiny. The mere rejection of post-detention e-Way Bills, without a cogent nexus to intention to evade tax, is fallacious. 19. Mere technical errors, without having any potential financial implications, should not be the grounds for imposition of penalties. The underlying philosophy is to maintain a fair and just tax system, where penalties are proportionate to the gravity of the offense. In the realm of taxation, imposition of penalty serves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of law and judicial oversight over administrative actions, providing a mechanism to correct errors and prevent the abuse of power. The writ of certiorari is not issued as a matter of course, but rather it is granted at the discretion of the superior court. Generally, certiorari is issued in cases involving errors of law apparent on the face of the record, jurisdictional issues, or procedural irregularities that may have a substantial impact on the fairness and legality of the proceedings. 23. Having already determined that the authorities in the instant case transcended their jurisdiction while passing the impugned orders, issuance of the writ of certiorari is necessitated in the instant case. Reference is made in this regard to the Central Council for Research in Ayurvedic Sciences and Another v. Bikartan Das and Others , reported in 2023 SCC OnLine SC 996, wherein Supreme Court upheld that writ of certiorari can be issued to correct errors of jurisdiction: 65. Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For the issue of a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w called order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction. (emphasis added) 25. In light of the aforesaid, it becomes apparent, that the impugned orders in the instant case are a result of the Respondent No. 2 and the Respondent No. 3 exceeding their jurisdiction and not proceeded in accordance with the essential requirement of the law where it was meant to adminiter. Therefore, a writ of certiorari is warranted in the instant case. 26. Accordingly, let there be a writ of certiorari issued against the order dated February 21, 2019 passed by the Respondent No. 2 and the order dated October 20, 2019 passed by the Respondent No. 3. The said orders are quashed and set aside. 27. This Court also directs the Respondent No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
