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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... nue for necessary clarification. It was therefor, incumbent upon the petitioner to produce documents as discussed hereinabove to clarify the situation. Having not done so, the petitioner cannot fall back and say that the order impugned is bad in law or without jurisdiction. On the contrary, the bona fide of the petitioner is in doubt and the presumption of withholding relevant documents by the petitioner is also substantiated. Jurisdiction - contention of petitioner is that the order impugned is without jurisdiction as the Revenue u/s 129 of the WBGST Act does not possess the jurisdiction to assess tax - HELD THAT:- In absence of the transaction being showed as an exempted one, the Revenue has no other option to compute the penalty. In order to compute the applicable penalty, the Revenue has taken the value of the JCB to be Rs. 27,000,00/-. The petitioner has also produced no documents to dispute such figure but only says that tax cannot be assessed which is an incorrect interception of the provisions of Section 129 of the WBGST Act - there are no infirmity in such computation. It is also not found that the order impugned has been passed without following any direction given in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 in connection wherewith a physical verification report in FORM GST MOV 04 was also issued. g) On 23rd April, 2023 an order of detention under Section 129(1) of the WBGST Act was passed by issuance of FORM GST MOV 06 stating that the goods were not covered by valid documents. h) On 26th April, 2023, the Deputy Commissioner of Revenue, State Tax, Bureau of Investigation (North Bengal) Alipurduar Zone being the respondent no. 2 herein issued a show-cause (SCN) under Section 129 (3) in FORM GST MOV 07 reiterating the observations made under the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marized 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) The said JCB was being transported under a valid E-way bill. All details of the JCB and the relevant facts on the basis whereof the same was carried back to Bihar from Arunachal Pradesh was available in the portal on being entered at the time of generating the E-way bill. The Adjudicating Authority on having decoded the Eway bill by using the software application was in possession of all details. However, ignoring the same and in a colourable exercise of power has passed the order impugned demanding a huge sum on account of penalty. v) The delivery challan which could not be produced at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of WBGST Act/CGST Act and the rules framed thereunder. 5. The Revenue had no other option but to compute the tax amount as envisaged under Section 129 of the WBGST Act treating the transaction attracting tax in terms of Section 7 read with second Schedule of the said Act. 6. The writ petition, therefor, is liable to be dismissed. Decision with Reasons: 7. Rule 138 of the West Bengal Goods and Services Tax Rules, 2017 (hereinafter referred to as the WBGST Rules) provide for the information to be furnished prior to commencement of movement of goods and generation of E-way bill. Admittedly the JCB is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 bill contained all requisite information. The incident can, therefore, be at the highest a bona fide mistake for which the petitioner can only be saddled with payment of an amount of Rs. 25,000/- under the provisions of Section 129 (1)(b) of the WBGST Act. 13. Countering this, it has been submitted by the Revenue that in the E-way bill generated on 18th April, 2023 which was valid till 26th April, 2023 the GSTIN of the supplier was mentioned as Pisi Suriya Singhpo who is an unregistered person (in short URP). The delivery challan which was produced by the writ petitioner shows that the said JCB was released by DAMIK g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 did not produce any such documents to clarify that there was no evasion of tax either from its end or from the end of B.G. Enterprise, a registered person by using the JCB belonging to the petitioner as suspected by the Revenue. On the contrary after having the goods released, the writ petitioner did not appear before the Adjudicating Authority in terms of the order dated 1st February, 2024 but had only sent a written notes of submission which did not disclose any new material despite getting an opportunity in terms of the order dated 1st February, 2024. The written submission filed by the writ petitioner has been duly consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty 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 Uttar Pradesh to Durgapur had reduced the imposition of penalty. 23. The same treatment is not available to the writ petitioner in the facts of the instant case. 24. The judgments relied upon by the writ petitioner in Prestress Steel (supra), K.D. Gupta (supra), Bharti Airtel (supra) and M/s. Maa Amba Builders (supra) in view of the facts considered therein, has no manner of application to the petitioner s case although, there is no quarrel as to the ratio laid down therein. Each one of such judgments was passed considering the case which was before the Court and does not lay down any general principle to be followed in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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