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TMI Blog2025 (3) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... of its claim but in the subsequent proceeding i.e. re-assessment proceedings, the burden shifts on the revenue - Under the taxing statute, in the original proceeding or in the summary proceeding, the primary burden is to be discharged by the assessee by bringing on record the cogent material. The burden of proof is shifting to the department only in the re-assessment proceeding or subsequent proceeding not being the original proceeding. In other words, the assessee in the original proceeding is duty bound to bring the material on record in support of its claim but in the subsequent proceeding i.e. re-assessment proceedings, the burden shifts on the revenue. The Hon'ble Apex Court in the case of State of Karnataka Vs. M/s Ecom Gill Coffee Trading Pvt. Ltd. [2023 (3) TMI 533 - SUPREME COURT] has held that burden was upon the dealer to prove beyond doubt its claim. Further, the Apex Court has emphasised in the said judgement that if the dealer is claiming any exemption, then burden to prove the genuineness of the transaction is upon the person claiming the benefit. On that background, the Hon'ble Apex Court has held that dealer has to prove the actual physical movement of the goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER HON'BLE PIYUSH AGRAWAL, J. 1. Heard Mr. Aditya Pandey, learned counsel for the petitioner and Mr. Ravi Shanker Pandey, learned Additional Chief Standing Counsel for the State-respondents. 2. Similar controversy is involved in all the writ petitions, therefore, with the consent of the parties, all the aforesaid writ petitions are being decided by a common judgement treating Writ Tax No. 1022 of 2021, as leading case. Writ Tax No. 1022 of 2021 3. By means of this writ petition, the petitioner is assailing the order dated 25.10.2021 passed by respondent no. 1 in Appeal No. GST/110/2020-21 (A.Y. 2021-22) under Section 129 (3) of IGST/CGST Act. 4. Learned counsel for the petitioner submits that petitioner is a proprietorship firm having GSTIN No. 18BPUPT4581B1ZB and is engaged in the business of trading of pan masala and scented tobacco. He submits that in the normal course of business, the petitioner has received an order for supply of pan masala and scented tobacco from various registered dealers situated at Delhi and in pursuance of the aforesaid order tax invoice dated 15.9.2021 was raised on which IGST, cess was charged. Since the value of the goods was less than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments accompanying with the goods. He submits that on perusal of the documents accompanying with the goods, it shows that the movement of the goods had started from West Bengal / Assam to Delhi but the statement of the driver of the vehicle was that the goods were loaded from Kanpur. 9. He further submits that petitioner has failed to bring any material on record, even before this Court, in order to prove that the actual movement of the goods started from West Bengal / Assam. He further submits that neither any truck number nor any toll receipt has been mentioned/ shown at any stage of the proceeding to prove that actual movement of the goods had taken place from West Bengal / Assam, however when the vehicle was detained at Kanpur then on physical verification, the movement of the goods was not found genuine, therefore, the proceedings were rightly initiated. 10. He further submits that the petitioner has utterly failed to bring on record any cogent material in order to prove the movement of the goods in question from West Bengal / Assam to Delhi. He further submits that the statement of Driver has not been rebutted at any stage of the proceedings. 11. In support of his submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60;त्यापन एवं प्रपत्रों की जांच के आधार पर निम्नलिखित प्रतिकूल बिन्दुओं पर स्पष्टीकरण अपेक्षित हैः- परिवहन के समय चेकिंग पर प्रस्तुत प्रपत्रों के अनुसार माल का परिवहन असम व पश्चिम बंगाल से दिल्ली हेतु किय ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2366; है। इस सम्बन्ध में माल के परिवहन में प्रयुक्त वाहन की EWAY OFFICER APP पर VEHICLE PASSAGE DETAIL चेक किये जाने पर प्रश्नगत वाहन को इन तिथियों में पश्चिम बंगाल व असम से कानपुर आना प्रदर्शित नहीं पाया गया। उपर्युक्त तथ्यों के आधार पर यह स्प& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Further while passing the order in MOV-6 following findings have been noted:- "8. माल के स्वामी द्वारा प्रस्तुत आपत्ति का अवलोकन किया गया जिसे निम्न कारणों से स्वीकार / अस्वीकार किया जाता है। जारी नोटिस के क्रम में विक्रेता फर्म सर्वश्री जया ट्रेडर्स असम (GSTIN - 18BPUPT4581B1ZB) के अधिकृत प ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ि प्रश्नगत माल कानपुर में ही निर्मित है एवं वाहन चालक के सशपथ बयान के अनुसार कानपुर से ही लोड किया गया है, के सम्बन्ध में कोई उत्तर दाखिल नही किया गया है। कानपुर में निर्मित माल को कानपुर से लोड कर असम में स्थि ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... टिस में इंगित तथ्य कि प्रश्नगत माल के भौतिक सत्यापन में माल के कानपुर की निर्माणकर्ता फर्म सर्वश्री ग्रीन्सवर्थ इण्टरप्राइजेज प्रा०लि० (GSTIN-09AAJCG0608CIZZ) पता - C9, A/2, A-5 AND A-6 SIDE-1, PANKI INDUSTRIAL AREA, KANPUR NAGAR द्वारा निर्मित होने तथा माल को कानपुर से ही लो ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46;्रश्नगत माल को असम से लोड किया गया है एवं न ही प्रश्नगत माल प्रस्तुत टैक्स इनवाइस के मूल्य से आच्छादित है। इस प्रकार के छद्म/कूटरचित प्रपत्रों की रचना करते हुए प्रश्नगत वाहन में लोड माल की मात्रा भी प्रपत्&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the taxing statute, in the original proceeding or in the summary proceeding, the primary burden is to be discharged by the assessee by bringing on record the cogent material. The burden of proof is shifting to the department only in the re-assessment proceeding or subsequent proceeding not being the original proceeding. In other words, the assessee in the original proceeding is duty bound to bring the material on record in support of its claim but in the subsequent proceeding i.e. re-assessment proceedings, the burden shifts on the revenue. 22. In the present case, the petitioner has utterly failed to bring on record any cogent material for transporting the goods from West Bengal / Assam to Delhi via Kanpur. Once the petitioner has failed to prove the true/ actual movement of the goods from West Bengal / Assam to Delhi, the seizure proceedings cannot be said to be unjustified. 23. The Hon'ble Apex Court in the case of State of Karnataka Vs. M/s Ecom Gill Coffee Trading Pvt. Ltd. (Civil Appeal No. 230 of 2023) decided on 13.3.2023 has held that burden was upon the dealer to prove beyond doubt its claim. Further, the Apex Court has emphasised in the said judgement that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under :- "The Court feels that neither the papers were available with the revisionist nor they were produced within a reasonable period. The statements of the Driver which is obtained at the first instance should be given more sanctity than the explanation which are produced by the managers and proprietors later-on." 31. The record further shows that orders have not only been passed on the ground of under valuation but otherwise. 32. The petitioner even failed to bring on record any cogent material to show actual movement of the goods. Once the actual journey as claimed by the petitioner was not proved, the proceedings cannot be said to be illegal or arbitrary. 33. Section 129 of the GST Act refers that any person transports any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, the said goods shall be liable to be detained or seized. 34. Under the GST Act, the tax invoice has to be issued in terms of Section 31 of the Act, which prescribes every registered dealer supplying the taxable goods before or at the time of removal of such supply of goods shall issue a tax invoice showing the description, quantity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Intra-State. 20. It is only to protect small trade where the value is minimal that the necessity of downloading E-Way bill is dispensed with by the Government. The purpose of dispensing E-Way bill for the goods below Rs. 50,000/- does not allow the dealer to undervalue his goods so as to escape it from bringing to the notice of the Government and the Taxing Authorities by uploading the same on the Web-Portal. 21... 22. From the transaction carried out by the petitioner it is clear that huge amount of Pan Masala and Tobacco were being transported undervaluing the goods, without downloading the mandatory E-Way bill. In the garb of technicalities, no benefit can be given to a dealer who has intentionally undervalued his goods to escape from the eyes of law. 23 ..., 24..... 25. This Court finds that it is a case of grossly undervaluing the 3,84,000 pouches of Pan Masala being sent by the dealer disclosing its price as Rs. 69,600/-. The only conclusion, which can be drawn is that to avoid downloading E-Way bill and brining the transaction on record that the goods were undervalued to such an extent. 26. Moreover, the Taxing Authorities have also found that one of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2340;ुत प्रपत्रों की जांच में यह भी प्रकाश में आया की आसाम व पश्चिम बंगाल के पंजीकृत फर्मों द्वारा दिल्ली के पंजीकृत फर्मों को माल के वास्तविक मूल्य से कम मूल्य घोषित करते हुवे इस प्रकार सुनियोजित ढंग से इनवॉइ& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground of under valuation. The Division Bench has held that it is incumbent on a person, who is transporting goods, to declare the true value of the goods and failure to declare the same, would result non proper document in the context of the valuation, therefore, the power of seizure of goods has correctly been exercised against the petitioner. The relevant paragraphs of the said judgement are quoted hereunder: "2. The petitioner, by means of the present writ petition, has impugned the seizure order dated 07.05.2011 on the following grounds:- "(i) Section 50 of U.P. Value Added Tax Act does not permit seizure of a consignment being imported into the State of U.P. on the ground of undervaluation; the entire proceedings suffer from an inherent lack of jurisdiction and are void ab initio. ....... 4.......As it was alleged in the notice that the goods were undervalued, the petitioner demanded, from the respondents, the basis for alleging the same. The petitioner denied that the goods were undervalued and contended that the charge of undervaluation was unsustainable. The power to seize goods on the ground of undervaluation was not available under the U.P. VAT Act. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (4) of Section 50 can be correctly understood, as the expression used is 'proper and genuine documents'. A document, which does not correctly state the value cannot be said to be a proper document. 8. .....In our opinion, it would not be possible for us to follow the judgment of the learned Judge in Delhi Calcutta Carrying Corporation (supra) rendered under the provisions of the U.P. Trade Tax Act. The reasons being that it is incumbent on a person, who is importing goods, to declare the true value of the goods. Failure to declare the true value of goods would result in the document being held not to be a proper document in the context of the valuation. 9......The legislature itself has conferred power of detention in respect of goods being imported under Section 50, if not covered by proper and genuine documents and by virtue of Section 50 (5) has incorporated the machinery provisions of Section 48 into Section 50. We, therefore, have no hesitation to hold that under Section 50 (4) of the U.P. VAT Act, the officer making search has power to detain goods not covered by a proper and/or genuine documents. We, therefore, have no hesitation in holding that the power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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