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TMI Blog2023 (12) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... g aside the order dated 08.11.2021 (Annexure-4) passed by the Ld. Assistant Commissioner CGST & CX, Jamshedpur (Hqrs.), whereby and whereunder, tax and penalty to the tune of Rs. 5,18,660.00/- has been imposed on the ground that e-Way Bill had lost its validity, without any finding of evasion of tax, which otherwise is bad in law. (c) For issuance of an appropriate writ, order or direction, for quashing and setting aside the order dated 26.05.2022 (Annexure-8), wherein the Ld. Joint Commissioner (Appeals) CGST & CX, Ranchi, had been pleased to dismiss the Appeal preferred by the Petitioner upholding the order dated 08.11.2021 (Annexure-4) passed by the Ld. Assistant Commissioner CGST & CX, Jamshedpur (Hqrs.). (d) Consequently, issue an appropriate writ, order or direction, directing the Respondent Authorities to refund the amount paid by the Petitioner in lieu of demand of tax and penalty raised by the Respondent No. 3 along with applicable interest in accordance with the provisions of the Central Goods and Services Tax Act, 2017 read with the prescribed rules under Central Goods and Services Tax Rules, 2017. 3. The brief facts of the case as disclosed in the instant applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.11.2021 passed by Respondent No. 3 which was registered as Appeal No. 117/CGST/JSR/2022. The matter was fixed for Personal Hearing through virtual mode on 06.05.2022 on which the counsel for the petitioner appeared and stated the reasons for delay i.e., delay because restriction of entry into the Adityapur Industrial Area, due to the festival of Diwali which led to expiry of eWay bill. Pursuant thereto; final order was passed on 26.05.2022 being Order No. CGST(A)- 93/JSR/2021-22/1061-1066 wherein the Appellate Authority dismissed the appeal filed by the petitioner holding that delay because of festive season is nowhere mentioned in the statute and hence the same cannot be considered as an explanation for expiry of e-Way bill and as such there is no merit in the appeal filed by the petitioner and upheld the order passed by Respondent No. 3. 4. Mr. N.K.Pasari, learned counsel for the petitioner submits that mere expiration of e-Way Bill by few hours in course of transportation would not invoke Section 129 of the Central Goods and Services Tax Act and Rule 138 of the Central Goods and Services Tax Rule, 2017. He further submits that the Central Taxes Officer could not have initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detention/ seizure of the vehicle and goods, nor could they give any reasonable grounds for the e-Way bill getting expired. All along, till the release of the vehicle, Shri Samir Chakraborty was available in the office and he was in touch with the petitioner. On the oral request and assurance for payment of tax liability and penalty, the Order no. 04/2021-22 dated 08.11.2021 (GST MOV - 09) was issued by the Assistant Commissioner, CGST & Central Excise, Hqrs., Jamshedpur. Para No. 7 of the Order no. 04/2021-22 dated 08.11.2021 specifically stated that to quote: "(i) The owner of the goods/person in charge of the conveyance has come forward and made the payment of tax and penalty as proposed. In view of this, the applicable tax penalty proposed is hereby confirmed. (ii) The owner of the goods/persons in charge of the conveyance has neither made the payment of tax and penalty proposed nor has he filed any objections to the notice issued in FORM GST MOV 07 and hence, the proposed tax and penalty are confirmed." Subsequently, the petitioner deposited the tax liability along with penalty as determined under Section 129(3) of the CGST Act, 2017 vide DRC-03 dated 09.11.2021. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held as under: "12. The issue as to whether the authority were justified in imposing tax and penalty on the ground that at the time of interception, the valid period of the - way bill stood expired and came up for consideration before the Coordinate Bench of this Court in the case of Hanuman Ganga Hydro Projects Private Limited -vs- Joint Commissioner, State Tax Authority, Silliguri Circle and Another reported in 2022 (50 Tax.com.023) - 2022-VIL-484-CAL. It was held by the Coordinate Bench of this Court that since it is not a case of willful attempt on the part of the writ petition to evade payment of tax, the orders passed by the Appellate Authority and the penalty were all set aside and quashed. 13. In the present case also the e-way bill was valid up to May 2,2022 and the vehicle of the Petitioner reached Silliguri on May 2, 2022 before the expiry of e-way bill but due to national holiday on May 3, 2022 at 3:20 AM, the vehicle was intercepted at Bakuabari which is about 16/17 kilometers from the destination. there is no other allegation against the petitioner. 14. Considering the peculiar facts of the case, this Court finds that there is no lack of bona fide on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the contention raised by the petitioner. It suffers from violation of principles of natural justice. The statements made at para-11 of the counter affidavit by the respondent regarding the mismatch in the quantity of goods with the Invoices are not substantiated by the physical verification report issued by the department in Form GST MOV04 (Annexure-7). The impugned action has entailed penalty without due consideration of the plea raised by the petitioner and without proper application of mind. As such, both the orders passed by the State Tax Officer (Annexure10) dated 12th July, 2018 and the appellate order dated 26th July, 2018 (Annexure-14) are set aside. The matter is remanded to the State Tax Officer to consider the plea raised by the petitioner in its reply and the plea based upon the amended Rule 138(3) of JGST Rules, 2017 brought into force with effect from 7th March, 2018 by notification dated 30th March, 2018, in accordance with law. The Bank Guarantee furnished by the petitioner if not encashed, be also returned to the petitioner in the aforesaid circumstances." 10. Having regard to the facts and circumstances of the case the impugned order dated 08.11.2021 (A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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