9911796707
TMI Blog2024 (3) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... March 14, 2019 passed by Assistant Commissioner, Commercial Tax, (Mobile Squad) Unit Jalaun, Agra/the respondent No.2. Further, a mandamus has been sought directing the respondent authorities to refund the amount of tax and penalty deposited by the petitioner. Facts 2. Factual matrix of the present case is delineated below: a. The petitioner is a registered dealer under the provisions of Goods and Services Tax Act, 2017 (hereinafter referred to as 'the Act'). On March 10, 2019, the petitioner had sold a consignment of TMT Bars (sariya) to one M/s Sahai & sons, Orai vide Tax Invoice No. 167. A vehicle bearing No. MP 16H 1584 was mentioned in the tax invoice for the transportation of the goods. b. On the same day i.e. March 10, 2019 at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that the invoice related to the goods could not be produced because it was handed over to the receiver firm before the interception took place. f. Being dissatisfied with the reply of the petitioner, respondent no. 2 rejected his reply and passed the order of demand of tax and penalty dated March 14, 2019. g. The petitioner thereafter deposited the amount of Rs.3,97,224/- towards tax and penalty, after which the respondent No. 2, released the goods in favor of the petitioner. Aggrieved by the order dated March 14, 2019 passed by the respondent No. 2, the petitioner preferred a statutory appeal before the respondent No. 3. h. The respondent No. 3, vide its order dated August 30, 2019, dismissed the appeal and upheld the order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed all the documents relating to the consignment of goods before the authorities much prior to the passing of seizure order. f. Since the petitioner had already deposited the tax on the consignment of seized goods and the relevant transaction had also been disclosed in the returns furnished by him, hence there was no intention to evade tax on his part and thus the impugned orders passed by the authorities are liable to be set aside. g. It is a settled law that if the e-way bill is downloaded before seizure and tax is also charged then seizure and penalty are not justified. This position of law has been held by the Division Bench of this Court in M/s Century Rayon V. Union of India reported in 2018 UPTC 528, M/s Bhumika enterprises V. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nregistered person, shall before commencement of such movement, furnish information relating to the said goods as specified in Part 'A' of the e-way bill electronically on the common portal along with other information as may be required on the common portal. b. In view of above provisions, the e-way bill is to be generated before the commencement of the transportation of goods, whether in respect of supply or otherwise. In the present case, the Assistant Commissioner, Commercial Tax, (Mobile Squad) Unit Jalaun, Agra has stopped the vehicle no. MP16H 1584 on 10.03.2019 at 01:11 P.M. At the time of interception of the vehicle, the documents such as e-way bill, invoice, bilty, etc. were not found regarding the goods loaded in the vehicle. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner of Revenue (WPA No. 178 of 2023 decided on 03.03.2023) and the Kerala High Court in M/s EVM Passenger Cars India Pvt. Ltd. Vs State of Kerala [W.P.(C) No. 10565 of 2018 decided on 23.08.2023] has held that the seizure and penalty order has been rightly upheld by the authority due to non-following of the provisions of the Act and Rules. In this regard, it may be submitted that such matter is related to year 2018-19. After 14th amendment of the Rule from 01.04.2018, a system has been well developed about e-way bill and it was obligatory on the part of the petitioner to have generated the e-way bill which was not complied with and the provisions were not followed by the petitioner. In view of these factual positions and le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -way bill, a presumption may be raised that there is an intention to evade tax. The relevant paragraphs of the aforesaid judgment read as under: "7. This Court in umpteen cases where penalties were being imposed under Section 129 of the Act though held that an intention to evade tax should be present, however, in the event the goods are not accompanied by the invoice or the e-way bill, a presumption may be raised that there is an intention to evade tax. Such a presumption of evasion of tax then becomes rebuttable by the materials to be provided by the owner/transporter of the goods. 8. In the present case, one comes to an inexorable conclusion that the petitioner has not been able to rebut the presumption of evasion of taxes, as he has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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