9911796707
TMI Blog2023 (12) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... RCIAL TAX ANR. VERSUS M/S SLEEVCO TRADERS [ 2023 (7) TMI 418 - SC ORDER ] and the Hon ble Apex Court dismissed the appeal of the State inter alia holding as This Court is of the opinion that there is no infirmity in the judgment of the High Court, which is correctly appreciated . Admittedly; in the instant case, the revenue has not taken into consideration the fact that because of denial of permission to enter into Adityapur Industrial Area due to the festive season (Deepawali), the vehicle (Truck) was bound to stop for some time, as a result of which the validity of the e-Way Bill expired. It is also admitted fact that the truck was within 1 KM of the Industrial Area and not far, thus it is evident that the expiry of e-Way Bill due to aforesaid reason should not and cannot amount to intention of evasion of tax and therefore, no extent of penalty would arise. This Court in similar facts and circumstance in the case of Rivigo Services Private Limited Versus The State of Jharkhand Ors. [ 2022 (11) TMI 391 - JHARKHAND HIGH COURT ] had quashed and set aside the order passed by the revenue and remanded the matter back to the authorities for fresh consideration. Inasmuch as, there is nei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iss 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 application is that the petitioner-company is engaged in the business of manufacture and supply of electric welded steel tubes. One M/s. Bhalotia Auto Products Private Limited, Purba Singhbhum, placed an order to the petitioner situated at Kolkata, West Bengal, for supply of 20.010 MT of MSPB RHS/SHS to its business premise at Purba Singhbhum. The petitioner raised Invoice bearing No. TCGF/02193/22 against the order placed and dispatched the same from West Bengal to Jamshedpur under proper cover of documents including e-way bill bearing no. 8111 8796 5282, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 initiated and passed an order under Section 129 of the Act, invoking powers in relation to inter-state transaction in view of Section 20 of Integrated Goods & Services Tax Act read with Section 129 of the Act. It is abundantly clear that only the proper officer noticed under the Central Goods & Services Tax Act has to invoke the jurisdiction. The respondents were not justified in imposing tax and liability only because the e-Way Bill had lost its validity while in transit. Admittedly, there was no intention to evade taxes, inasmuch as, all the other documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Therefore, the ground for not extending natural justice to the petitioner is not proper and legal. 6. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it appears that one truck with goods was intercepted on 06.11.2021 at 08:30 AM by the Inspector, Anti-Evasion, CGST & CX, Jamshedpur, for verification/inspection, on which it was found that the e-Way bill had expired on the previous date i.e., on 05.11.2021 at 12.00 AM and statement of the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illful 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 part of the petitioner to state that there was willful misconduct committed by the petitioner while transporting the goods. 15. In view of the above facts and circumstances of the case, the order of the Appellate Authority dated January 31,2023 and the order passed by the adjudicating authority dated May 12,2022 are set aside and quashed. 16 The petitioner paid the penalty, is entitled to apply for refund, which shall be considered by the appropriate authority within a period of 15 days from the date on which such application is made an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Annexure-4) as well as order dated 26.05.2022 (Annexure-8), are hereby quashed and set aside, inasmuch as, there is neither any intention to evade payment of tax nor any fraud has been committed and valid documents were accompanying with the goods as required under the Act; save and except, the E-Way Bill which had expired by few hours and this Court cannot ignore the fact that the vehicle was intercepted very near to the Check-Post and as stated by the petitioner and not controverted by the Revenue that it was the festive season of Diwali. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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