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TMI Blog2024 (5) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... nreasoned. iii) To quash and set aside the order of the Appellate Authority i.e. the Addl. Commissioner (Appeals) GST, dated 24.05.2022 (Ann.-7). iv) Any other suitable order or direction, which the Hon'ble Court may deem just and proper in the facts and circumstances of the case, may kindly be passed in favor of the Petitioner." 2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that the petitioner is a dealer of Iron items and conducting his business from Deshnok, District Bikaner and the petitioner-Firm is registered under the Central Goods & Services Tax Act, 2017 (hereinafter referred to as 'CGST Act, 2017') having registration No. 08BFWPR2595M1Z8. During the course of its business, the petitioner purchased goods amounting to Rs. 9,43,993/- i.e. Iron Channel, Beam and angles from R.K. Steels, Jaipur on 25.02.2021 and an e-way bill No. 781176882246 (valid upto 27.02.2021) was generated accordingly at 05:03 a.m. on 25.02.2021, whereafter, the said goods were loaded in a truck, along with the goods of one other Mahaveer Iron Store by the transporter and the vehicle started its journey late evening on the date of purchase. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... morning. 3.2. Learned counsel also submits that the delay occurred was beyond the control of both the petitioner as well as the driver, thus on a mere delay of 44 minutes, the tax and penalty in question was imposed upon the petitioner; in furtherance, the e-way bill is to protect the revenue of the Government, and since the GST was already levied upon the goods, no loss of revenue had been incurred by the Government. 3.3. Learned counsel further submits that in the given circumstances and as per the conduct of the petitioner, the penalty in question could not have been imposed under Section 129 (3) of CGST Act, 2017, and thus, the impugned orders are arbitrary and not justified in law. 3.4. In support of such submissions, learned counsel placed reliance on the judgment rendered by a Division Bench of the Hon'ble Gujarat High Court in the case of Shree Govind Alloys Pvt. Ltd. Vs. State of Gujarat (R/Special Civil Application No. 23835 of 2022 decided on 01.12.2022). 4. On the other hand, learned counsel for the respondents while opposing the submissions made on behalf of the respondents submits that the distance from Raisar to Bikaner is around 20 km and can be covered within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly, the proceedings in question were initiated and the impugned notice as well as the impugned order under Section 129 (3) of the CGST Act, 2017 was issued on 01.03.2021, whereafter an appeal was preferred by the petitioner which came to be dismissed vide the impugned order dated 24.05.2022 by the appellate authority. 7. This Court is conscious of the order passed by the Hon'ble Apex Court in the case of Assistant Commissioner (ST) and Ors. vs. Stayam Shivam Papers Private Ltd. & Ors. SLP (c) No. 21132/2021, decided on 12.01.2022, the relevant portion whereof is reproduced as hereunder: "6. Having said so, the High Court has set aside the levy of tax and penalty of Rs. 69,000/- (Rupees Sixty-nine Thousand) while imposing costs of Rs. 10,000/- (Rupees Ten Thousand), payable by the Petitioner No. 2 to the writ Petitioner within four weeks. 7. The analysis and reasoning of the High Court commends to us, when it is noticed that the High Court has meticulously examined and correctly found that no fault or intent to evade tax could have been inferred against the writ Petitioner. However, as commented at the outset, the amount of costs as awarded by the High Court in this m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. (2) xxx xxx xxx (3) The proper officer detaining or seizing goods or conveyance shall issue a notice within seven days of such detention or seizure, specifying the penalty payable, and thereafter, pass an order within a period of seven days from the date of service of such notice, for payment of penalty under clause (a) or clause (b) of sub-section (1) (4) No penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. (5) On payment of amount referred in sub-section(1), all proceedings in respect of the notice specified in subsection( 3) shall be deemed to be concluded. (6) Where the person transporting any goods or the owner of such goods fails to pay the amount of penalty under sub-section (1) within fifteen days from the date of receipt of the copy of the order passed under sub-section (3), the goods or conveyance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radesh (Writ Petition No. 12324 of 2022, on 10.08.2022), as hereunder: "21. In view of aforesaid stand of parties, it is clear that the E-way Bill of the petitioner was valid upto 19/05/2022 and truck was intercepted on 20/05/2022 at Dindori at 4.35 A.M. The specific contention of learned counsel for the petitioner that there was no element of tax evasion, fraudulent intent and negligence on his part was not rebutted by learned counsel for the respondents. It is apt to reproduce the relevant para of judgment of Telangana High Court in (2021) 5 GSTJ Online 174 (TG) Satyam Shivam Papers Pvt. Ltd. vs. Asst. Commissioner, ST & others (W.P. No. 9688 of 2020), which reads as under :- "42. How the 2nd respondent could have drawn an inference that petitioner is evading tax merely because the E-way Bill has expired is also nowhere explained in the counter-affidavit. In our considered opinion, there was no material before the 2nd respondent to come to the conclusion that there was evasion of tax by the petitioner merely on account of lapsing of time mentioned in the E-way Bill because even the 2nd respondent does not say that there was any evidence of attempt to sell the goods to somebo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no intention of any evasion of tax on the part of the petitioner. 3. The petitioner in support of his contention has relied on an unreported decision of the Supreme Court dated January 12, 2022 passed in Special Leave Appeal (C) No(s). 21132/2021 (Assistant Commissioner (ST) & Ors. v. Satyam Shivam Papers Pvt. Limited & Anr.). 4. Learned advocate appearing for the respondent could not make out a case against the petitioner that the aforesaid violation was willful and deliberate or with a specific material that the intention of the petitioner was for evading tax. 5. Considering the submission of the parties and the facts and circumstances of the case, this writ petition being WPA No. 11085 of 2021 is disposed of by setting aside the impugned order of the appellate authority dated March 18, 2021 as well as the order of the adjudicating authority dated September 11, 2019 and as a consequence, the petitioner will be entitled to get the refund of the penalty and tax paid on protest subject to compliance of all legal formalities." (Emphasis supplied) 25. We find substantial force in the arguments of learned counsel for the petitioner that present case has similarity wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order dated 01.03.2021 was passed under Section 129 (3) of the CGST Act, 2017, the same being completely unjustified in the eye of law as the issue was not one of there not being an e-way bill, but one of the existing e-way bill having expired during transit, thus imposition of such a heavy penalty for a minor offence is unacceptable and the penalty imposed should have been as per Section 122 of the CGST Act, 2017 of Rs. 10,000/-, as there is no apparent case of tax evasion. 12. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case as well as the afore-quoted precedent laws, this Court is of the opinion that the impugned notice and the impugned orders dated 01.03.2021 and 24.05.2021 deserve to be quashed and set aside and the same are hereby quashed and set aside. This Court is also conscious of the fact that the petitioner has already paid tax so also the penalty for release of detained goods, thus the same be returned to the petitioner, while adjusting/deducting the penalty of Rs. 10,000/- under Section 122 of CGST Act, 2017, within a period of three months from the date of receipt of a certified copy of this judgment. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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