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TMI Blog2024 (11) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... al Goods and Services Tax Act, 2017 (hereinafter referred to as "the CGST Act"), whereby, the respondent No. 1 has confirmed the order dated 03.03.2022, imposing penalty of Rs. 11,80,150/- under Section 129 (1) of the GST Act. 5. The petitioner company is into the business of manufacturing of various items of rubber and is also having registration under the GST Act. The petitioner had imported material from China for the purpose of its business after payment of Integrated Goods and Service Tax (IGST) on 14.12.2021. 5.1 The petitioner imported Rubber Conveyor Belt and allied materials, and obtained bill of lading and certificate of origin from the Custom Authorities who after inspection of the goods gave such clearance. The petitioner after clearance of the goods by the Custom Authority was transporting its goods from the Port at Mundra to godown at Ahmedabad by generating Part - A E-waybill on 01.03.2022 at 4:05 p.m. It is the case of the petitioner that the Part-B of the E-waybill could not be generated due to technical glitches on the portal and without generation of Part-B of the E-waybill as prescribed in Form GST EWB-01, the petitioner transported the goods in conveyance bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the petitioner was not generating the Part-B of the E-waybill due to the technical glitches on the portal. 6.2 Learned advocate Mr. Vijay Patel for the petitioner invited the attention of the Court to page No. 57 of the paper-book to point out that the Part-A of the E-waybill was generated on 01.03.2022 at 04:05 p.m and the goods were intercepted at 06:05 p.m. and thereafter, the Part-B was generated on 06:51 p.m. as placed on record at Page No.58 of the paper-book. It was, therefore, submitted that there was no intention on the part of the petitioner to transport the goods without complying with the provisions of the CGST Act and Rules framed thereunder. 6.3 In support of his submissions, reliance was placed on the Circular No. 64/38/2018 dated 14.09.2018, whereby, the Central Board of Indirect Taxes and Customs (CBIC) has provided for modification of the procedure for interception of conveyance for inspection of the goods in movement, and detention, release and confiscation of such goods and conveyances, as clarified in Circular Nos. 41/15/2018-GST dated 13.04.2018 and 49/23/2018-GST dated 21.06.2018. It was submitted that as per the Circular No. 64/38/2018, the CBIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-way bill along with the goods and therefore, there is a clear violation of the provisions of the Act and Rules and the penalty was rightly imposed upon the petitioner by invoking the provisions of Section 129 (1) (a) of the Act. 7.1 It was further submitted that the petitioner had paid the penalty voluntarily in response to the show cause notice in compliance of the provisions of Sub-sections 3 and 4 of the Section 129 of the CGST Act and therefore, the petitioner now, cannot agitate for levy of the penalty which was paid at the relevant point of time on 03.03.2022. 7.2 Learned advocate Ms. Sancheti in support of her submissions, preferred to and relied upon the following averments made by the respondent Nos. 1 and 2 in the affidavit-in-reply, which are reproduced as under: "As regards the above contention of the Petitioner, it is submitted that as per the 'Loaded Container Gate Out' Slip issued by the Honeycomb Logistics Pvt. Ltd. (CFS), the subject vehicle carrying container has started transportation of the subject detained goods out of the CFS on 01.03.2022 at 02.51 pm, Part-A of the E-way Bill was generated on 01.03.2022 at 04.05 pm, thus, it appears that even P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods and there was no intention to evade payment of tax is not tenable and acceptable. 6. With respect to Para J, it is to submit that the plea of the Petitioner that as per the Board's Circular No. 64/38/2018-GST dated 14.09.2018, in case of technical errors in the documents accompanying the goods, provisions of Section 129 of the GST Acts may not be resorted to but instead goods may be released on payment of nominal penalty under Section 125 of the GST Acts, it is submitted that goods in transit found without e-way bill is not covered in the situations described in Para 5 of the said Circular. Rather, it is specifically mentioned in the said Para 5 that when any consignment of goods is accompanied with an Invoice and e-way bill, then only in the circumstances / situations described in the said para, proceedings under Section 129 of the CGST Act may not be initiated. It is very clearly mentioned in Para 3 of the said Circular "Further, it may be noted that the non-furnishing of information in Part B of FORM GST EWB-01 amounts to the e-way bill becoming not a valid document for the movement of goods by road as per Explanation (2) to rule 138 (3) of the CGST Rules, except the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 8.2 Moreover, it is also not in dispute that the Part-B of the e-way bill was generated at 6:51 p.m. on 01.03.2022 and as such it was a minor lapse on the part of the petitioner for not generating Part-B of the e-way bill and for that the petitioner cannot be saddled with the huge penalty of Rs. 11,80,150/-. 8.3 Section 129 (1) of the CGST Act, reads as under: "129. Detention, seizure and release of goods and conveyances in transit. (1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released,-- (a) on payment of the applicable tax and penalty equal to one hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forwa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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