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TMI Blog2024 (5) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to a challenge as regards payment of tax and penalty and not in relation to the factum of presumption being drawn on the intention to evade tax on the non-extension of the validity of the e-way bill. Petition disposed off. - HON BLE JUSTICE RAJA BASU CHOWDHURY For the petitioner : Mr. Sandip Choraria Mr. Rajeev Parik For the State : Mr. Subir Kumar Saha Mr. Dilip Kumar Agarwal JUDGMENT RAJA BASU CHOWDHURY, J: 1. The present writ petition has been filed, inter alia, praying for quashing and/or to set aside the order dated 14th September, 2023 passed in an appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017/ Central Goods and Services Tax Act, 2017 from an order passed under Section 129(3) of the said Act. 2. It is the petitioners case that the petitioner no. 1 had in course of its usual business, dealings and transactions received orders from M/s City Developers Private Limited for supply of 32.200 mt. of TMT Bar (hereinafter referred to as the contracted goods ). For the execution of the said contract the petitioner no. 1 had placed order on M/s N.N. Ispat Private Limited, having its factory at Diwandighi, Palitpur Road, Burdwan, West Bengal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter alia, pleased to dismiss the said appeal observing that the detention of goods and imposing of penalty were as per the provisions of law, and having not found any reasons to interfere with the adjudicating order rejected the said appeal. 8. Mr. Choraria, learned advocate representing the petitioners by placing before this Court the ground of appeal submits that the appellate authority despite being obliged to take note and dispose of the grounds of appeal had failed to do so. He submits that in the instant case, the only fault of the petitioners was to get the validity of the e-way bill extended within the prescribed time. Admittedly, the petitioners had caused the invoice to be issued, such fact would corroborate from the copies of the documents annexed with the writ petition. 9. Unfortunately, for the petitioners before the e-way bill could be extended, the goods in question were intercepted and a show-cause notice to that effect was issued. On the question, whether the proceedings under Section 129(3) are deemed to be concluded upon payment being made, in terms of Section 129 (5) of the said Act, he places reliance on the judgment delivered by the Hon ble Kerala High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ureau of Investigation reported in (2023) 152 Taxmann.com 239 (Calcutta) it is submitted that unless there is willful delay, the petitioners cannot be made responsible and no penalty could have been thrust on the petitioners in terms of Section 129(3) the said Act. The order impugned should be set aside. 12. Mr. Agarwal, learned advocate appearing for the respondents, on the other hand submits that admittedly the e-way bill in the present case had expired on the date when the vehicle-in-question along with the goods were intercepted. It is immaterial whether there is mens rea attached. By placing reliance on a judgment delivered in the case of Asian Switchgear Private Limited (supra), it is submitted that the Hon ble Division Bench in paragraph 37 has come to a finding that the department stands relieved of the burden of proof of mens rea or motive in respect of a statute imposing penalty as a civil obligation for violating a tax regime. 13. By further placing reliance on the judgment delivered in the Vardhan Associates Pvt. Ltd. v. Assistant Commissioner of State Tax Central Section Ors. reported in (2024) 158 Taxmann 89 SC it is submitted in an identical set of facts, the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no reference to the ground of non-evasion of tax or deliberate delay. Although, Mr. Agarwal by placing reliance on a judgment delivered by the Division Bench of this Court in the case of Asian Switchgear Pvt. Ltd. (supra) claims that the department stands relieved of the burden of proof of mens rea or motive in respect of statute imposing penalty as a civil obligation for violating a tax regime, I find that such observation is based on the judgments delivered by the Hon ble Supreme Court in the cases of Chairman, SEBI v. Shriram Mutual Fund Anr reported in (2006) 5 SCC 361, Guljag Industries v. Commercial Tax Officer reported in (2007) 7 SCC 269 and the State of Gujrat and Anr v. Saw Pipes Limited reported in 2023 SCC Online SC 428. 17. The Hon ble Division Bench in the said case of Asian Switchgear Pvt. Ltd. (supra) in paragraph 27 has been pleased to observe as follows: 27. Relevancy of motive in respect of imposition of tax liability to the extent that it result in civil liability has been examined by the Supreme Court in Shriram Mutual Fund Another (supra), Guljag Industries (supra) and in Saw Pipes Limited (supra). The Supreme Court has held in such authorities that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me mentioned in the e-way bill because even the second respondent does not say that there was any evidence of attempt to sell the goods to somebody else on 6-1-2020. On account of non-extension of the validity of the e-way bill by the petitioner or the auto trolley driver, no presumption can be drawn that there was an intention to evade tax. 19. The Division Bench of this Court in the case of Pushpa Devi Jain (supra) while considering an identical issue in paragraph 4 had been pleased to observe as follows:- Considering the peculiar facts of the case, we find that there is no lack of bona fide on the part of the appellant to state that there was wilful misconduct committed by the appellant while transporting the goods. There is every possibility that even if an application was made for extension of the e-way bill within the time permitted, 23rd April, 2022 being a Saturday, the e-way bill, in all probabilities, would not have been revalidated within the eight hours period. 20. Having regard to the aforesaid, I am of the view that simply because there was no extension of the e-way bill, the same does not pre-supposes that there was an intention to evade tax. There is no finding eith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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