GST Caselaw

#GSTCase-72- E-Way Bill-(Feb-March-2019)-Detention held illegal if Form GST MOV-06 not properly filled, Proceedings under section 130 cannot be initiated without initiating proceedings under section 129, Non-obstante clause in Section 129 indicates that provisions of Section 126, Section 125, or Section 122 would not apply in cases where Section 129 is attracted.

#GSTCase-72- E-Way Bill-(Feb-March-2019)-Detention held illegal if Form GST MOV-06 not properly filled, Proceedings under section 130 cannot be initiated without initiating proceedings under section 129, Non-obstante clause in Section 129 indicates that provisions of Section 126, Section 125, or Section 122 would not apply in cases where Section 129 is attracted, Penalty Leviable for non-filing of Part B of E-Way Bill 

                                                                                                                                                       CA Arpit Haldia

 

Case-1-: Synergy Fertichem (P.) Ltd v. State of Gujarat  [2019] 103 taxmann.com 426 (Gujarat)

Case-2: G. Murugan v. Government of India [2019] 103 taxmann.com 351 (Madras)

Case-3: S.A. Products v. State of U.P. [2019] 103 taxmann.com 69 (Allahabad)

Case-4: Daily Express v. Assistant State Tax Officer [2019] 104 taxmann.com 47 (Kerala)

Case-5-: R K Motors v. State Tax Officer [2019] 102 taxmann.com 337 (Madras)

 

Case-1-: Synergy Fertichem (P.) Ltd v. State of Gujarat  [2019] 103 taxmann.com 426 (Gujarat)

Issue-: Proceedings initiated under section 130 without initiating proceedings under section 129

Facts: Show-cause notice dated 1.3.2019 issued by the proper officer sought to impose penalty, redemption fine and confiscation under Section 130 of the Act without initiating any proceedings under section 129 of the Act. IGST had already been paid on the goods in question at the time of import thereof and that the goods in question are perishable goods with a limited shelf-life.

Contention by the Petitioner: It was pointed out that firstly, under section 129 of the Act, the officer is required to issue a notice as contemplated under sub-section (3) thereof and thereafter, after affording an opportunity of hearing to the person concerned, pass an order thereunder. It was submitted that it is only if there is no compliance of the order passed under section 129 of the Act, that the provisions of section 130 of the IGST Act can be resorted to. In the instant case, notice under section 130 has been issued directly without issuing notice under section 129.

Held:  Having regard to the submissions advanced by the learned counsel for the petitioners, Issue Notice returnable on 8th March, 2019.

 

 

Case-2: G. Murugan v. Government of India [2019] 103 taxmann.com 351 (Madras)

Issue: None of the relevant fields prescribed under Order of detention in Form GST MOV-06 ticked and almost all fields had been left blank

Facts: Vehicle carrying goods was intercepted by officials of Commercial Taxes, Department who proceeded to cause inspection of the vehicle. A statement had been recorded in Form GST Mov-01, from the driver who was incharge of the goods in conveyance. Admittedly, the statement at Column 10 thereof, admits that there is a mistake in the vehicle number mentioned. Thereafter, Form GST Mov- 02, ordering the physical verification/inspection of the conveyance, goods and documents was issued. The order, dated 04.02.2019, though signed by the Proper Officer is blank in so far as all relevant fields are concerned. Pursuant thereto, the order was issued under MOV-06 on 04.02.2019.

Held: The order of detention has to reflect the reasons for which the seizure of the conveyance/goods has been effected. A perusal of the impugned order reveals that none of the relevant fields have been ticked and almost all fields have been left blank. It is thus entirely unclear as to what statutory provision or Rule the petitioner has contravened. Detention of conveyance and goods is an extreme step that seriously prejudices an assessee and it is incumbent upon the statutory authority/the Proper Officer arrayed as respondent No.2, to have made mention of the contravention in the field provided in the impugned order for such purpose. This has not been done.

Though Section 107 of the Act provides for appeals or revisions that may be filed by any person aggrieved by any decision or order passed under this Act by an adjudicating authority, but the Hon’ble High Court was not inclined, in the circumstances of the present case, to relegate the petitioner to the statutory remedy provided. Any appeal that the petitioner might file would have to assume the contraventions that the impugned order is based upon since the impugned order is incomplete and wholly non-speaking, leaving even mandatory fields in the order, blank.

In the light of the above discussion, it was held that the present order of detention cannot be sustained and the same is quashed. The vehicle shall be released forthwith upon receipt of a copy of this order. The writ petition is allowed and connected miscellaneous petitions are closed. No costs.

 

 

Case-3: S.A. Products v. State of U.P. [2019] 103 taxmann.com 69 (Allahabad)

Issue: E-Way Bill generated for Higher Value and on physical verification goods found to be less

Facts: Petitioner had generated e-way bill for more amount and on physical verification the same was found less.

Contention by the Petitioner: He had already paid tax at the time of sale of goods specifically mentioned in the sales invoice and e-way bill was duly generated. Subsequent to payment of GST, opposite parties have no reasonable apprehension of evasion of tax. Any intervention with the business of the petitioner will be violative of his rights.

Held: There is no inference drawn by the opposite parties that the e-way bills were not correct or they were fake. Learned Standing counsel prays for a week’s time to seek instructions. An officer of not less than the rank of Assistant Commissioner, who is well versed with the facts of the case, may be present before the Court on the date fixed. List on 14.2.2019 as fresh.

 

Case-4: Daily Express v. Assistant State Tax Officer [2019] 104 taxmann.com 47 (Kerala)

Issue: Part B of E-Way Bill not filled and whether non-obstante clause in Section 129 indicates that neither Section 126, nor the general provision of penalty under Section 125, or Section 122 would apply in cases where Section 129 is attracted.

Facts: On 15.10.2018, while petitioner was transporting goods bound to Kollam in vehicle No.KL- 04/V-9334 with a consignment by VIP Industries to be delivered to M/s. VTWO Ventures, Kollam, the vehicle was intercepted by the first respondent, Assistant Sales Tax Officer (ASTO). The driver had all documents in tact and in order, with the exception that, Part-B of the e-way bill was not complete.

The petitioner filed the Writ Petition. Vide the impugned judgment dated 29.11.2018, the Writ Petition was dismissed holding that the provisions under Section 129(1)(b) applies to the transporter as person interested in the goods and therefore, Exts.P5 to P7 notices of detention do not suffer from any legal infirmity calling for interference.

Contention by the Petitioner:

  • Even admittedly, there is no case of tax evasion made out. The invoices were all in order and the only infraction was non-filling of Part-B of the e-way bill.
  • Section 126 of the CGST Act provides that no officer shall under this Act impose any penalty for minor breaches of tax regulations or procedural requirements and in particular, any omission or mistake in documentation which is easily rectifiable and made without fraudulent intent or gross negligence. According to her, non-filling of part-B of e-way bill is only a minor breach as stated in Section 126.
  • Since there is no tax evasion, tax and penalty could not have been demanded, because there is no wilful misstatement or suppression of facts as required under Section 74 of the CGST Act.
  • Section 122 (xiv) of the CGST Act to provides that even if there is a breach by the transporter, transporting any taxable goods without the cover of documents as may be specified in this behalf, at best, penalty to the tune of Rs. 10,000/- alone could be imposed.
  • Even if general penalty is to be imposed under Section 125 of the CGST Act, it could only be to the extent of Rs. 25,000/- and nothing more.
  • Circular No.76/50/2018-GST, F.No.CBEC-20/16/04/2018-GST of Government of India, Ministry of Finance dated 31.12.2018, clarifies that ‘owner of the goods’ for the purpose of Section 129(1) of the CGST Act would be either the consignor or the consignee, if the invoice or other specified document is accompanying the consignment of goods.

In the instant case, the consignment was with all accompanying documents pertaining to the sale and therefore, the transporter could not be mulcted with liability to pay tax and penalty as per Ext.P7.

Held:

  • Provisions of Section 129 applicable to Transporter as well: Reading of Section 129(6) would indicate that where a person transporting any goods or the owner of the goods, fails to pay the amount of tax and penalty as provided in sub-Section (1) within 14 days of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of Section 130. This would undoubtedly indicate action not only against the goods, but also against the transporter.
  • Non-obstinate Clause under Section 129: The non-obstante clause in Section 129 indicate that neither Section 126, nor the general provision of penalty under Section 125, or Section 122 would apply in cases where Section 129 is attracted. Section 126 refers to ‘minor breaches’. Explanation(a) to section 126 states that a breach shall be considered a ‘minor breach’, if the amount of tax involved is less than five thousand rupees. Hence for that reason alone, Section 126 is not attracted in the instant case.

Therefore, learned Single Judge had rightly dismissed the Writ Petition refusing to find any infirmity in Exts.P5 to P7 notices and therefore, Writ Appeal is without any merits and requires to be dismissed, which we do. No order as to costs.

 

 

Case-5-: R K Motors v. State Tax Officer [2019] 102 taxmann.com 337 (Madras)

Issue: Goods transported from Pune to Virudhunagar moved towards Sivakasi and intercepted 7 Kms away from Virudhunagar 

Facts: Petitioner had placed orders with their principal for delivery of 40 numbers of two wheelers [Pulsar Bike]. The goods were shipped from Pune to be delivered at Branch Office of the writ petitioner at Virudhunagar. It appears that the vehicle transporting two wheelers instead of halting at Virudhunagar, had moved towards Sivakasi. When the vehicle was enroute to Sivakasi and 7 km away from Virudhunagar, it was intercepted by the respondent roving squad. The respondent had passed release order putting the writ petitioner on terms.

Contention by the petitioner: The learned counsel appearing for the writ petitioner states that the said driver knows neither English nor Tamil. He knows only Marathi and Hindi.The specific stand taken by the writ petitioner is that the driver without knowing the correct route had taken a wrong turn and headed towards Sivakasi.

Observation by the Court: The vehicle ought to have stopped at Virudhunagar and the goods ought to have been offloaded at Virudhunagar itself. But then, the question is whether a drastic order passed by the respondent herein was really warranted in the facts and circumstances of the case. Following issues are not in dispute:

  • Writ petitioner is an authorised dealer of Bajaj Auto Limited.
  • The goods are covered by appropriate documents.
  • The tax payable has also been paid by the writ petitioner’s principal.
  • The writ petitioner is carrying on the business of dealing in two wheelers for the past several years. The driver, who drove the vehicle in question is not a Tamilian. His name is Badrinath Bhandari. He hails from Maharashtra.
  • The bill is addressed only to the writ petitioner’s principal office at Sivakasi; delivery alone is to be made at Virudhunagar.

Held:

Even if by mistake, a wrong instruction had been given to the driver of the vehicle to head towards Sivakasi. Still it would not really matter. The only question that the respondent ought to have posed is whether there is any attempt at evasion. It is not as if the goods had already been offloaded. The vehicle was intercepted when it was in transit.

The respondent ought to have directed the driver of the vehicle to move back towards Virudhunagar. Instead adopting such a procedure, the respondent had chosen to be harsh and vindictive. When writ petitioner is a registered dealer, when the tax in respect of the goods have already been remitted and when the transportation of goods is duly covered by proper documentation, the respondent ought to have taken a sympathetic and indulgent view of the lapse committed by the driver of the vehicle. The detention order dated 28.12.2018 and the order dated 11.01.2019 suffer from vice of gross unreasonableness and disproportionality. When a power is conferred on a statutory authority, it should be exercised in a reasonable manner.

As rightly pointed out by the learned counsel appearing for the writ petitioner, the goods in question are two wheelers. They cannot be sold without proper registration with the Motor Vehicle Authorities. That would require proper documentation. Therefore, in a case of this nature, the writ petitioner could not have evaded his statutory obligations in any manner. This aspect of the matter ought to have been taken note by the respondent.

The respondent shall forthwith release the vehicle as well as the goods in question. Accordingly, this writ petition is allowed.

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