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TMI Blog2024 (5) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... he said JCB had been taken on hire from the petitioner for road excavation work. b) On 18th April, 2023 an E-way bill was generated by the petitioner for transportation of the said JCB as "inward job work returns". A consignment note was generated by Pisi Suriya Singhpo (hereinafter referred to as the Consignor) wherein the consignee was the petitioner. The place of dispatch was indicated to be Changlang Miao, Arunachal Pradesh and the place of delivery was Gaya, Bihar. c) The value of the goods was stated to be zero and the said E-way bill was valid up to 26th April, 2023. d) The JCB loaded in a vehicle bearing no. NL01NB8041 which was also said to be mentioned in the E-way bill and the challan. e) The said vehicle was intercepted by the Officers of the Bureau of Investigation, North Bengal Alipurduar Zone. Finding discrepancies during inspection as envisaged under Section 68(1) of the Central Goods and Services Act, 2017 (hereinafter referred to as the CGST Act) a case was registered with case no. APD/R/W/37/23-24 dated 21st April, 2023. f) An order of physical verification in FORM GST MOV 02 was issued which was followed by vehicle verification of the conveyance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay a sum of Rs.9,93,008/- on account of penalty under Section 29(1)(a) of the WBGST Act. q) Assailing the said order dated 27th March, 2024 the petitioner has filed this writ petition inter alia on the ground that the said order was passed in gross violation of the direction given by this Court vide its judgment and order dated 1st February, 2024 and the order impugned is therefor, illegal and not sustainable. The order impugned is according to the petitioner also erroneous and arbitrary. II. Submission of the Petitioner: 1. The submissions of the petitioner can be summarized as follows: i) The order impugned is without jurisdiction in as much as the same has been passed without following the directions given by this Court in the order dated 1st February, 2024 passed in WPA 85 of 2024. ii) The Adjudicating Authority without deciding the matter afresh only reiterated its previous order in a mechanical manner which is against the spirit of the order dated 1st February, 2024. iii) The Adjudicating Authority has no authority to assess the tax allegedly evaded in course of transit of the JCB from Arunachal Pradesh to Bihar and to impose penalty on that basis. iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner was issued a show-cause directing him to produce necessary documents. The petitioner apart from producing the E-way bill and an unsigned delivery challan prepared in the letterhead of B.G. Enterprise, Arunachal Pradesh did not produce any other documents. Even after being provided with an opportunity pursuant to the direction given by the order dated 1st February, 2024. 2. The written submission filed by the writ petitioner as the writ petitioner did not appear was duly considered and a reasoned order was passed dealing with all the contentions raised by the writ petitioner. The order impugned cannot therefore be said to be one without jurisdiction. The writ petition is also not maintainable in view of the alternative remedy available in form of an appeal under Section 107 of the WBGST Act. 3. The order impugned according to the Revenue is also in compliance with the statutory provisions. As the writ petitioner did not produce any document neither to show the acquisition price of the JCB nor its depreciated value or the alleged rental income, the Revenue has assessed the reasonable value of the JCB and computed the penalty. 4. This has also been done following the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JCB. The delivery challan was also with the driver of the vehicle but could not be produced at the time when the vehicle was intercepted as he had misplaced the same. The delivery challan has been subsequently produced. There is as such no question of evasion of tax and the whole action of the Revenue is without jurisdiction. The order impugned is also passed in violation of the direction given by this Court in its judgment and order dated 1st February, 2024 passed in WPA 85 of 2024 and as such is without jurisdiction so the same can be challenged directly filling this writ petition instead of preferring an appeal under the provisions of Section 107 of the WBGST Act. The Appellate Authority failed to appreciate this fact and as such the order impugned dated 27th March, 2024 is liable to and should be set aside. 12. The alterative argument of the petitioner is that assuming without admitting that all the documents required under Rule 138A of the WBGST Rules were not there when the vehicle was intercepted but the same did not amount to violation of the provisions of Rule 138 as the requisite documents were produced before the authority concerned subsequently. In any event the E-way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch job work must be reflected in the books of the writ petitioner which would demonstrate that there has been no evasion of tax as doubted by the Revenue. The writ petitioner could have also produced the documents on the basis whereof the writ petitioner had performed the job work at Arunachal Pradesh with the said JCB and that it was being taken back on completion of such job work to its place of business. 15. The writ petitioner has not produced any of these documents and/or the relevant documents to show that the said JCB is owned by the writ petitioner and due tax for acquiring the same has been paid in order to use the said JCB in furtherance of its business. Assuming without admitting that the JCB was sent to Arunachal Pradesh on rental basis, then also the relevant documents relating to letting out of the JCB, the E-way bill by which the same was taken to Arunachal Pradesh and the rental income ought to have been reflected in the books of the writ petitioner. The petitioner in such a case would have documents either from Pisi Suriya Singhpo, Arunachal Pradesh or from M/s. B.G. Enterprise, Arunachal Pradesh for having let out the JCB for job work. 16. The writ petitioner di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground of alternative remedy being available, I am inclined to give the petitioner the benefit as it has contended that the order impugned is without jurisdiction. It is well-settled principle of law that alternative remedy is not an absolute bar for filing a writ petition particularly when the order is assailed as one without jurisdiction. 20. The judgment in Vardan Associates (supra), has clarified the position when a consignment is intercepted in course of inter-State movement and it is claimed that such consignment is exempted from payment of GST and in absence of proper documents imposition of GST and attendant penalty is justified both in law as well as in facts. 21. It is also not in doubt that stricto sensu an assessee/registered person cannot shirk from his responsibility of complying with the requirement of law to produce valid documents required under the Act and the rules framed thereunder on the consignment being intercepted. 22. The Hon'ble Supreme Court in the facts of the said case on considering that the act of the appellant in the said case was bona fide and did not amount to evasion of tax since the same was paid while the goods were transported from Ut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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