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TMI Blog2024 (7) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... posing penalty of Rs. 500/- under Section 125 of the GST Act and Rs. 1,000/- under the IGST Act. The respondent no. 2 has not disputed the fact that the chassis number of the vehicle is different than that of what is mentioned in the invoice and the e-way bill number. Even the transport receipt number is also mentioned in e-way bill is also the same. In the facts of the present case, the impugned order of demanding tax and penalty in Form GST MOV-09 is without jurisdiction as the respondent no. 2 could not have detained vehicle on the ground of invalid e-way bill. The impugned order dated 14.01.2020 demanding the total tax of Rs. 18,74,972/- and total penalty of the equal amount under clause (a) of sub-Section (1) of Section 129 of the GST Act is hereby quashed and set aside. Appeal allowed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Uchit N Sheth (7336) For the Respondent(s) No. 2 : None For the Respondent(s) No. 2 : Ayaan A Patel (8900) For the Respondent(s) No. 1 : Mr Ankit Shah (6371) ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Uchit Sheth for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aches mid-way around Surat as to whether the original truck was repaired or not and whether he is to continue in the replacement truck. 4.8 The truck carrying the car of the Petitioner was stopped for verification by the 2nd Respondent authority on 11.1.2020. The driver of the truck produced the stock transfer invoice and e-way bill in respect of the car being transported. On being asked as to why the truck number mentioned in the e-way bill was different, the driver explained that it was only a replacement truck since the original truck had suffered breakdown and that if it is immediately repaired then the original truck would be sent for resuming transportation. 4.9 The inspector submitted a physical verification report in Form GST MOV-4 on the very same date, wherein no discrepancy was found in the car being transported and the documents thereof. 4.10 The 2nd respondent-authority, however, still passed impugned detention order dated 11.1.2020 (annexed at Annexure A) in Form GST MOV-6 solely on the ground that there was mismatch in vehicle number as mentioned in the e-way bill and the actual vehicle. 4.11 The 2nd respondent authority further issued notice in Form GST MOV-7 on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the chassis number of the car being transported was mentioned in the e-way bill and hence, it was established beyond doubt that the e-way bill for the very same goods have been generated and therefore, the impugned order passed under Section 129 of the GST Act on the ground that the petitioner could not produce the valid e-way bill for the car being transported is only without jurisdiction and liable to be quashed and set aside. 7. It was submitted that an error in one of the columns of the e-way bill at the best can be said to be procedural breach of the rules, which can attract penalty under Section 129 of the GST Act, more particularly in the facts of the case when it is established on the basis of the chassis number that e-way bill was for the very goods, which were being transported and minor error in e-way bill does not justify an action under Section 129 of the GST Act. 8. Learned advocate Mr. Sheth referred to and relied upon the circular issued by the Central Board of Indirect Taxes dated 14.09.2018, which clearly lays down that detention under Section 129 of the GST Act would be permissible in absence of valid e-way bill, but not in case of minor errors in e-way bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same and therefore, there was no error as alleged by the respondent no. 2. With regard to mentioning of wrong rout by the driver, it was submitted that the driver had merely stated that he had been instructed to temporarily commenced transportation and inquired when he would reach at Surat so as to whether the original truck was reach or not. It was, therefore, submitted that there is no question of e-way bill being of wrong route and the e-way bill was in need till the branch of the petitioner in Thane as is cleared from the annexure to the statement in Form GST MOV-1. 11. Learned advocate Mr. Sheth has submitted that it is not in dispute that the goods were moving from the premise of the petitioner in Gujarat to its branch in the State of Maharashtra and therefore, it was an inter State supply and leavy of CGST and SGST on the transaction, which is an inter State supply is in any case wholly without jurisdiction and illegal. It was submitted that the Goods and Services (Compensation to States) Act, 2017 is a separate legislation providing for imposition of cess on specified goods and there is no provision for search and seizure or detention of goods in the said Act and Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts levy of CGST and SGST and accordingly the taxes and penalties have been rightly imposed and confirmed vide FORM GST MOV-09 dated 14.01.2020. 11. This is not the case of imposition of the cess but the case of contravention of the provisions of e-way bill, as contained under Section 129 of CGST Act, 2017 which clearly speaks about imposition of taxes and penalties. Further, in the absence of any document relating to the goods in movement it is not possible to ascertain the value of the goods in conveyance. However, the documents like e-waybill No. 641168424873 dated 10.01.2020 generated for stock transfer invoice No. LCPL/STKOUT/GJ/49/19-20 dated 10.01.2020 for the similar kind of goods i.e. Mercedes Benz car, has been produced but it was for another carrier conveyance/vehicle No. GJ01HT9061. The said No. LCPL/STKOUT/GJ/49/19-20 dated 10.01.2020 invoice being carried by the person in charge of the vehicle/conveyance bearing No. GJ01LQ9720, shows the value of goods Rs. 39,06,190/- and the applicable tax @28% IGST is Rs. 10,93,733.20/- and Cess @20% is Rs. 7,81,238/- which has been considered for calculation of applicable tax and penalty in the present case wherein no e-way bill ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were being transported. The only error found by the respondent authority in the e-way bill is that the correct number of the vehicle was not mentioned in part-B of the e-way bill, for which the petitioner has explained that the truck number of the vehicle, which is mentioned in the e-way bill was suffered breakdown and therefore, the goods were being transported in another truck. The statement in Form made by the driver in Form GST MOV-01 also refers to the transportation of the goods from Ahmedabad to Surat only with regard to the carrying out the temporary arrangement made to reach upto Surat so as to ship the cars being transported in the vehicle whose number is mentioned in the e-way bill. It is also not in dispute that the goods were stopped transfer from Ahmedabad to the branch of the petitioner at Thane in Maharashtra and does not involve any transaction or sale of purchase. 16. In view of such undisputed facts, it is clear that there was no intention of the petitioner to transfer the goods without being accounted for, which is the main intention of Section 129 of the GST Act. Reliance placed on the circular no. 64/38/18 on behalf of the respondent no. 2 is on the contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 125 of the GST Act and Rs. 1,000/- under the IGST Act. The respondent no. 2 has not disputed the fact that the chassis number of the vehicle is different than that of what is mentioned in the invoice and the e-way bill number. Even the transport receipt number is also mentioned in e-way bill is also the same. 18. This Court in case of Shree Govind Alloys Pvt. Ltd. vs. State of Gujarat, dated 01.12.2022 rendered in Special Civil Application No. 23835 of 2022 has held as under:- 9. This Court in Govind Tobacco Manufacturing Co. vs. State of U.P., [2022] 140 taxmann.com 383 (Ahmadabad) has held that as there is expiry of e-Way bill on transit, the seizure of said vehicle and the goods is not permissible under the law. In the case before the High Court of Madhya Pradesh at Jabalpur in M/s. Daya Shaker Singh vs State of Madhya Pradesh passed in Writ Petition No. 12324 of 2022 on 10.08.2022 , where also the Court had intervened considering the fact that the respondent could not establish any element of evasion of tax with fraudulent intent or negligence on the part of the petitioner. Delay was of almost 4 hours before the e-Way bill could expire. It appeared to be bona fide and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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