| | | |
| No Requirement
to check intent
to evade | Sterile India (P.) Ltd. v.
Union of India [2023]
149 taxmann.com 5
(Punjab & Haryana) | The Court observed that for the purpose of Section 129 of the CGST/SGST Act, 2017 there is no requirement that there should be intention to
evade tax. The authorities are not required to establish intention to evade payment of tax. It was stated that Section 129 has been enacted to check
evasion of tax. If the goods are intercepted during transit and the documents accompanying the goods are not in compliance with the provisions of the
Act, authorities are within their power to detain the goods and demand payment of tax and 100% penalty under the provisions. It was further observed by
the Court that the petitioner did not deny that payment under Section 129(3) of the CGST/SGST Act, 2017 had been made. Therefore, keeping in view
the bare provision of Section 129 (5) it was further observed that all proceedings in respect to the notice were deemed to have been concluded |
| Intent to Evade
to be
established for
levy of penalty
for movement
with Expired Eway Bill | Shree Govind Alloys
(P.) Ltd. v. State of
Gujarat [2023] 148
taxmann.com 382
(Gujarat) | The Court observed that e-Way Bill had expired 41 hours before and the detention was also on the ground that the goods are of expiration of the e-Way
bill number, which had expired during the transit. The Court relied upon the decision in Govind Tobacco Manufacturing Co. v. State of U.P., [2022] 140
taxmann.com 383 (Ahhahabad) wherein it was held that as there is expiry of e-Way bill on transit, the seizure of said vehicle and the goods is not
permissible under the law. It further relied upon the decision of High Court of Madhya Pradesh in M/s. Daya Shaker Singh v. State of Madhya
Pradesh passed in Writ Petition No.12324 of 2022 on 10-8-2022, where also the Court had intervened considering the fact that the respondent could not
establish any element of evasion of tax with fraudulent intent or negligence on the part of the petitioner. The Court thereafter allowed the petition while
observing that the delay appeared to be bona fide and without establishing any fraudulent intention and there was no fraudulent intention for
this to happen. |
| No Penalty for
movement with
Expired Eway
Bill if mens rea
not proved by
Revenue | Orson Holdings
Company Ltd. v. Union
of India [2023] 147
taxmann.com 71
(Gujarat) | In the instant case, goods which were to be delivered, could not be delivered in time and when inspected, some of the e-Way bill numbers had shown
expired. The company was situated at Howrah, West Bengal and the place of delivery was Jamnagar, Gujarat and in transit, this e-Way bill has expired.
The Court held that the case is squarely covered by the decision of this Court in Shree Govind Alloys (P.) Ltd. which has not been further
challenged and even otherwise, from the facts which are robust in nature, it can be gathered that there does not appear to be any ill-intent on
the part of the petitioner to use the expired e-Way bill |
| Mens Rea
needs to be
established by
the authority in
was of
movement of
goods with
Expired E-way
Bill | Sanskruthi Motors v.
Joint Commissioner
(Appeals) [2022] 145
taxmann.com 164
(Kerala) | The reason for invoking Section 129 of the CGST laws was that the e-way bill has expired. The Court distinguished the decision of Division Bench
of Kerala High Court in Renjilal Damodaran's case and took a different view as the Division Bench did not consider the question as to whether the
imposition of a major penalty along with a demand for IGST was justified for the reason that the e-way bill had expired. The Court relied upon the
judgement in the matter of Podaran Foods India (P.) Ltd.v. State of Kerala [2021] 123 taxmann.com 282 and also on the Judgement of Division Bench of
the Telangana High Court in Satyam Shivam Papers (P.) Ltd's case (supra) and stated that the officer was duty bound to consider the explanation
offered by the petitioner for the expiry of the e-way bill. There was no finding that there was any attempt to evade tax. Further it was also observed
by the Court that the judgment of Telangana High Court in Satyam Shivam Papers (P.) Ltd.'s case (supra) was challenged before the Supreme Court and
the Special Leave Petition was dismissed by a speaking order. In view of the aforesaid findings, the order was quashed and remanded back to
consider the amount of penalty to be imposed on the petitioner taking note of the findings in the Judgment |
| Intent to Evade
required to be
proved in case
of movement of
goods with
Expired Eway
Bill and
applicability of
Section 126 for
levy of penalty
commensurate
to the breach | Daya Shanker Singh v.
State of Madhya
Pradesh [2022] 142
taxmann.com 266
(Madhya Pradesh) | E-way Bill was valid upto 19-5-2022 and truck was intercepted on 20-5-2022 at 4.35 A.M. The petitioner contended that there was no element of tax
evasion, fraudulent intent and negligence on his part was not rebutted by learned counsel for the respondents. The petitioner relied upon the judgement
by Telangana High Court in the matter of Satyam Shivam Papers (P.) Ltd. v. Asstt. CST [2021] 127 taxmann.com 646/50 GSTL 459/5 GSTJ Online 174)
against which the revenue filed by SLP was dismissed with a speaking order in the matter of Asstt. CST v. Satyam Shivam Papers (P.) Ltd. [2022] 134
taxmann.com 241/57 GSTL 97/90 GST 479/[2022] 7 GSTJ Online 16 (SC). The reliance was also placed on the judgement of Calcutta High Court
in Ashok Kumar Sureka v. Asstt. Commissioner, State Tax Durgapur Range [2022] 7 GSTJ Online 78 (Cal.). The High Court observed that the revenue
could not establish that there exist any element of evasion of tax, fraudulent intent or negligence on the part of the petitioner and thus held
that in the above backdrop, the impugned notice/order could not have been passed. Further Court also observed that principles of natural justice
were statutorily recognized and ingrained alognwith doctrine of proportionality while bringing sub-section (1) of section 126 in the Statute Book and
punishment should be commensurate to the breach is the legislative mandate as per sub-section (1) of section 126. Thus, it was held that in the instant
case, the delay of almost 4:30 hours before which E-way Bill stood expired appeared to be bonafide and without establishing fraudulent intent
and negligence on the part of petitioner, the impugned notice/order could not have been passed |
