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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 ..... lace of the manufacture. It is also emerging from the record that the petitioner had generated Part-A of the e-way bill and only the Part-B of the e-way bill was not accompanying the goods in the conveyance, when the same were intercepted at 6:05 p.m. on 01.03.2022. In the facts of the case, as the petitioner has paid the penalty pursuant to the notice after detention or seizure of the goods in question in response to the notice issued as per Sub-section 3 of the Section 129 of the CGST Act, the petitioner was liable to pay the penalty equivalent to two hundred per cent of the tax payable or however, in the facts of the case, as the IGST was already paid on the goods, the petitioner was subjected to the penalty of two hundred per cent of the tax paid, but, at the same time, considering the fact that the contravention of the Rule 138 is venial and technical as the goods in question were not accompanying with the Part-B of the e-way bill, the penalty as prescribed in Clause (a) of Section 129 (1) of the CGST Act is required to be modified and the lesser penalty of Rs. 25,000/- as stated in the said Clause would justify the contravention of the Rule 138 of the Rules committed by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GST, Kutch, intercepted the conveyance at Padan National Highway No.41 and issued Form GST MOV 01 and GST MOV-02, after inspection of the goods and the conveyance, passed an order dated 01.03.2022 of detention in Form GST MOV-06 on the same day. 5.3 The respondent No. 1 issued a show cause notice dated 03.03.2022 in Form GST MOV-07 calling upon the petitioner to show cause as to why the penalty of Rs. 11,08,150/- should not be imposed on the petitioner and he was further directed to appear in-person or through authorized representative on 04.03.2022. 5.4 It is the case of the petitioner that the goods in question were required by the petitioner for manufacturing activity. The petitioner deposited the amount of penalty i.e. Rs. 11,08,150/-as stated in show cause notice in Form GST MOV-07. The respondent No. 1, therefore, passed the order in Form GST MOV-09 dated 03.03.2022, confirming the penalty to the tune of Rs. 11,08,150/-. 5.5 The petitioner being aggrieved by the order passed in Form CGST MOV-09 preferred appeal under Section 107 of the CGST Act and prayed for deletion of penalty imposed under Section 129 (1) (a) of the CGST Act on the ground that there was no contravention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any other specified document and also an e-way bill, proceedings under Section 129 of the CGST Act may not be initiated and certain examples are also given in para 5 of the said Circular. 6.4 It was submitted that in the facts of this case, the petitioner along with the goods which were being transported from the Port to the place of manufacturing of the petitioner, the conveyance was having the documents containing Part-A of the e-way bill as well as the documents of bill of lading, invoices etc. to show that the petitioner had imported the goods in question from China. It was, therefore, submitted that there was no intention on the part of the petitioner to violate any of the provisions of Section 129 (1) (a) of the Act. It was, therefore, submitted that the respondent authorities ought to have considered the facts of the case and could not have levied any penalty upon the petitioner. 6.5 Learned advocate Mr. Patel in support of his submissions referred to and relied upon the decision of the Hon ble Kerala High Court in case of M/s. T.P. Metals Roofings Vs. Assistant Tax Officer (INT) Ors. rendered in WP(C) No. 26645 of 2021 on 30.07.2024 . It was submitted that in the similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarted transporting the goods. The vehicle was detained by the CGST Officers on 01.03.2022 at 06.05 pm, till then Part-B of the e-way bill was not generated. Part-B of the e-way bill was generated on 01.03.2022 at 06.51 pm i.e. after the subject vehicle was detained and MOV-01 was issued to the driver. Thus, it appears that the transporter has generated part-B of the e-way bill after the vehicle/goods were detained so as to make good the lapse on their part under the pretext that part-B could not be generated due to technical glitches on GST portal. In support of his claim about technical glitches, the Petitioner has not produced any proof in form of email correspondence or any correspondence made or complaint lodged with GST E-way Bill Portal Authority informing or complaining about the technical glitch or non-functioning of the portal at the relevant time. As per Explanation-2 to Rule 138 (3) of the CGST Rules, 2017, without generation of Part-B, an E-way Bill is not considered as a valid E-way Bill for movement of goods. The provisions of Section 129 of the CGST Act, 2017 clearly prescribes that Notwithstanding anything contained in the Act, where any person transports any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion territory to or from the place of business of the transporter to the place of business of the consignor or consignee as the case may be. Thus, in the instant case, non-generation of Part-B of the e-way bill rendered thee-way bill becoming not a valid document for movement of the goods and therefore, the consignment to be considered as in transit without an e-way bill. Therefore, as per para 4 of the said Circular which is It is clarified that in case a consignment of goods is accompanied by an invoice or any other specified document and not an e-way bill, proceedings under section 129 of the CGST Act may be initiated. , the proceedings initiated by the department under Section 129 was proper and legal. 7.3 Referring to the above averments, it was submitted that no interference is required to be made by this Court in the impugned orders of levy of penalty in view of the fact that the petitioner has voluntarily accepted the amount of penalty proposed in the show cause notice dated 03.03.2022 issued in Form GST MOV-07 and therefore, the respondent authorities in absence of any agitation or objection filed by the petitioner were not supposed to decide the justification for levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty; (c) 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. 8.4 On perusal of the above provisions, in order to see that the petitioner has violated the provisions of Section 129 which starts with non-obstante clause, 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, then such goods are liable for detention or seizure and after detention and such seizure, the same can be released on payment of penalty as described in clause (a) and (b) of the Sub-section 1 of Section 129. On perusal of the clauses (a) and (b), the penalty which is levia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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