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TMI Blog2024 (1) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... The said tax invoices were issued by SAIL in accordance with the provision of Section 31 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the 'CGST Act, 2017') read with Rule 46 of the Central Goods and Services Tax Rules (hereinafter referred to as the 'CGST Rules, 2017'). b. Thereafter, the petitioner obtained the service of a private road carrier for the transportation of its goods through vehicle bearing registration No. UP-70-AT-3747 from SAIL Yard, Naini, Allahabad, to Falguni Steels, Lookerganj, Allahabad. The tax invoices contained the number of the said vehicle. c. The petitioner alleges that during the relevant time, the e-Way Bill portal of the Department was marred by glitches and technical shortcomings and owing to the said fact, e-Way Bills on several occasions could not be generated by the Transporters/Consignors/Consignees. d. Owing to the above stated glitch, e-Way Bills could not be generated by the time of the onset of the transportation of the Good. The said e-Way Bills were generated on February 20, 2019 (No. 47051859886) and February 21, 2019 (No. 481051862043). The petitioner states that the said e-Way Bills were presented bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MOV-06, dated February 20, 2019, the Respondent No. 2 had inspected the vehicle no. UP-70-AT-3747 on February 20, 2019 at 23:37:09 at Bairahana Power House. However, as per the FORM GST MOV-07, dated February 21, 2019, the statement of the vehicle owner was taken at the same time on February 20, 2019 at 23:27:09 which is practically not possible. There is some controversy. b. In the order passed by the Respondent No. 2, it has been stated that both the e-Way Bills were generated by the petitioner after detention (i.e. 23:37:09 on February 20, 2019). However, as per the facts of the case, the petitioner has generated one e-Way Bill before the detention and the second e-Way Bill after the detention due to technical glitches on the Portal. c. The Respondent No. 3, also ended up faltering in its duties. Without mindfully appreciating the arguments advanced by the petitioner, it went ahead and upheld the order of the Respondent No. 2. The said order passed by the Respondent No. 2 is a non-speaking order as the Respondent No. 2 did not afford any reason behind the decision taken by it. The only reason afforded by the Respondent No .2 is that the e-Way Bill so produced is an afterthou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Modern Traders v. State of UP (Writ Tax No. 762 3 of 2018). The writ petition in the said case was allowed and the penalty order therein was set aside. i. In the instant case, the petitioner had also generated and produced the e-Way Bill on February 20, 2019 at 11:34 P.M. (i.e. before the detention which was made at 23:23:09 on February 20, 2019) and on February 21, 2019 at 12:46 A.M.(i.e. before the passage of the Order dated February 21, 2019 under Section 129(3) of the UPGST Act, 2017). In view of the same, the impugned order passed by the Respondent No. 2 is liable to be quashed with the grant of consequential relief to the petitioner. j. There is no intention of the evasion of tax by the petitioner. k. When goods were transported along with the specified documents, in which no discrepancy was found, detention of goods under Section 129 of the UPGST Act, 2017 was wholly without jurisdiction and illegal. Thus, even on assuming that the Respondent No 2 had jurisdiction to pass an order under Section 129 of the UPGST Act, 2017, then also the movement of goods was not in contravention of any provision of the UPGST Act, 2017 and the rules framed thereunder. l. Even ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l difficulties, the question which arises before me is whether or not there was any actual intent to evade tax on part of the petitioner. 7. In the case of VSL Alloys (India) Pvt. Ltd. v. State of U.P. and Another reported in 2018 SCC OnLine All 6080, while dealing with a situation where Part- B of the e-Way Bill was not generated, this Court observed that the petitioner therein was supposed to fill up Part- B of the e- Way Bill giving all the details including the vehicle number before the goods were loaded in a vehicle, and it failed to do so. However, there was no ill intention at the hands of the petitioner therein to evade tax, since the documents accompanying the goods contained all the relevant details. Relevant paragraphs from the said judgment have been extracted below :- "13. We are in full agreement with the submission of the learned counsel for the petitioner and after perusal of the relevant documents, we find no ill intention at the hands of the petitioner nor the petitioner was supposed to fill up Part-B giving all the details including the vehicle number before the goods are loaded in a vehicle, which is meant for transportation to the same to its end destination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 122 of the CGST Act in the facts & circumstances of the present case. It is also not in dispute that after release of the goods, the same were sold to P.L. Trading Company. 11. Section 129 of the CGST Act deals with detention, seizure and release of goods in case violation of the provisions of the CGST Act is found. Section 130 deals with confiscation of goods or conveyance and levy of penalty. Both the sections revolve around a similar issue and provide for the proceedings available at the hands of the proper Officer upon him having found the goods in violation of the provisions of the Act, Rule 138 of the Rules framed under the CGST Act being one of them. Upon a purposive reading of the sections, it would sufice 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." 10. In J.K. Cement Ltd. v. State of U.P. and Ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the petitioner has submitted that since the petitioner has placed the e-way bill on May 5, 2018 itself respondent No. 3 has illegally proceeded to pass the impugned orders before any physical verification done. 11. We find substance in the submission of the learned counsel for the petitioner. Once the e-way bill is produced and other documents clearly indicates that the goods are belongs to the registered dealer and the IGST has been charged there remains no justification in detaining and seizing the goods and asking the penalty. 13. Upon a bare reading of the aforesaid judgment, one cannot help, but draw a parallel between the factual situation in the aforesaid judgment, and the factual situation in the instant case. Before the order imposing penalty was passed, the petitioner in the instant case had generated both the e-Way Bills which the Respondent No. 2 failed to take into account. Furthermore, this failure on the part of the Respondent No. 2 was not corrected by the Respondent No. 3. Imposition of penalty must be backed by potent reasoning, which to me, seems missing here. 14. In Axpress Logistics Pvt Ltd. v. Union of India and Others reported in 2018 SCC OnL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echnical mistakes that may have arisen, without there being any intention to evade tax. 17. Once both the e-Way Bills were presented before passing of the penalty order, and all the documents including the tax invoices, were found to be in order, the Respondent No. 2 had no sound rationale to pass the impugned order dated February 20, 2019. A bare reading of the said order would show that the presence of the tax invoices, was recorded by the Respondent No. 2. Furthermore, the Respondent No. 2 also rejected the e- Way Bills which were generated post the detention of the goods, since the same in its opinion, was contrary to the provisions of the UPGST Act, 2017/ CGST Act, 2017. Nowhere in the said impugned order, it has been recorded that there was any definite intention to evade tax. The essence of any penal imposition is intrinsically linked to the presence of mens rea, a facet conspicuously absent from the record. The order, therefore, stands vulnerable to challenge on the grounds of disproportionate punitive measures meted out in the absence of concrete evidence substantiating an intent to evade tax liabilities. 18. These errors of jurisdiction, committed by the Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the judgments cited above, the Courts therein have emphasized upon the need for a meticulous examination of the facts and circumstances surrounding each case to establish the presence or absence of intentional tax evasion. 20. To conclude, the requirement of intent to evade tax for the imposition of penalties is a fundamental principle that underpins the fairness and integrity of taxation systems. Recognising the distinction between technical errors and intentional evasion is essential for maintaining a balanced and equitable approach to tax enforcement. As nations continue their pursuit of effective tax administration, upholding this principle becomes paramount in fostering voluntary compliance, preserving trust in the tax system, and ensuring the judicious use of regulatory powers. 21. Since the petitioner in the instant case has prayed for the issuance of the writ of certiorari, it would be prudent on my part to, to lay threadbare the principles governing the issuance of a writ of certiorari. 22. The writ of certiorari, a legal remedy originating from the Latin term meaning "to be more fully informed", holds a paramount position within the realm of administrative law. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the law, a writ of certiorari can be issued. Relevant paragraphs have been extracted below: "36. So far as we know, it has never been contended before this Court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the court exercising its writ jurisdiction. No ruling was brought to our notice in support of the proposition that the court exercising its powers under Article 226 of the Constitution, could quash an order of an inferior tribunal, on the ground of a mistake of fact apparent on the face of the record. 37. But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record'. Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned? This court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law in England, are, therefore, the same. It is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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