GST Caselaw

#GSTCase-112-Cases on E-Way Bill on Two Important Issues-Levy of Penalty under section 122 for goods sent for repairing without E-Way Bill and New E-Way Bill generated in place of Expired E-Way Bill before detention of goods is valid

  1. Valimohammed Jusab & Co. v. State of Gujarat [2019] 110 taxmann.com 488 (Gujarat)

 

Issue: Goods sent on Repairing Without E-way Bill and Penalty Imposed under 122(xiv) instead of 129 as interim relief

Contention of Appellant: Vehicle came to be intercepted at 18:15 hours on 20.8.2019 and immediately thereafter, at 7.49 p.m., e-way bill came to be generated. The attention of the court was invited to the provisions of section 2(108) of the GGST Act, 2017 to submit that taxable supply means a supply of goods or services or both which is leviable to tax under the Act. It was submitted that in the present case, the goods were merely being transported back to the premises of Nirma Ltd. for job-work and that no goods or services were leviable to tax in respect thereof. Reference was made to provisions of section 122 of the GGST Act, 2017 and more particularly, clause (xiv) thereof to submit that the same provides that where a taxable person who transports any taxable goods without the cover of documents as may be specified in this behalf, he shall be liable to pay a penalty of Rs. 10,000/- or an amount equivalent to the tax evaded or the tax not deducted under section 51 etc. It was submitted that in this case, the petitioner is not liable to pay any tax and hence, at the most, the petitioner could be made liable to pay penalty of Rs. 10,000.

Held: The documents produced on record, prima facie indicate that old and used Winch Machine was being transported from premises of Yadav Trading Co. where it had been sent for repairs and was being transported back to Nirma Ltd., there is substance in the submissions made by the learned advocate for the petitioner that at best, the petitioner would be liable to pay fine of Rs. 10,000/- as contemplated under clause (xiv) of section 122 of the GGST Act, 2017. Under the circumstances, issue notice, returnable on 17.10.2019. By way ad-interim relief, the respondents are directed to forthwith release Truck No.GJ-04-V-4335 along with the goods contained therein subject to the petitioner depositing a sum of Rs. 10,000/- with the respondent authorities.

 

  1. Ram Charitra Ram Harihar Prasad v. State of Bihar [2019] 111 taxmann.com 312 (Patna)

 

Issue: New E-Way Bill Generated in place of Expired E-way Bill before detention of Goods is valid 

Facts: The goods in question was being transported from the district of Vaishali to the district of Kishanganj and E-WAY BILLS to such effect under the provision of Section 138 of ‘the Act’ was generated on 18.04.2019 which had a validity until 22.04.2019. The goods are tax paid goods. The consignment reached its destination on 22.04.2019, yet the vehicle was found in movement and which led to its seizure/detention under Section 129 of ‘the Act’ and the proceedings initiated thereunder with service of notice on the dealer. No sooner the position was gathered by petitioner that a fresh E-WAY BILL was generated at 6.16 A.M in the morning of 26.04.2019 validating the transportation and which fact is taken note of by the Deputy Commissioner in his order recorded on 26.04.2019 whereby the proceedings had been initiated.

Deputy Commissioner while putting the petitioner on notice on the expiry of the E-WAY BILL ordered for detention of the vehicle together with the goods loaded thereon. This order is dated 27.04.2019. The proceedings so initiated has culminated in the demand present in the summary of the order impugned at Annexure-5 dated 07.05.2019.

Contention by Department: Even if provision of Rule 138(9) and (10) enables the petitioner to upload and validate part B of the Form GST EWB-01 within a period of 15 days, in the present case a new E-WAY BILL has been generated and which would not come to the aid of the petitioner.

Held: If the legislature has thought of giving liberty to a transporter to validate and extend validity of E-WAY BILLS for reasons beyond his control and which exercise has been done either by way of a fresh generation or a re-validation, it would come within the parameter of such enabling jurisdiction which suffers no infirmity. The rules framed by the State of Bihar as discussed above itself enables a dealer to extend the validity period of the E-WAY BILLS on its expiry after updating the details in part B of form GST EWB-01, meaning thereby, the generation of the E-way bill on 26.4.2019 did not suffer infirmity and confirmed that it is the same vehicle which is transporting the goods; that there is no change in the nature of goods or the mode of conveyance and the generation had been done by the petitioner on 26.04.2019 i.e. before the detention order then in absence of any prescription in the Rule which debars a dealer from generating such E-WAY BILLS on its expiry, where is the default to invite a proceeding.

 

Hon’ble Court also observed that how after taking note of the generation on 26.04.2019 yet the Deputy Commissioner has proceeded to order for detention of the vehicle together with the goods loaded thereon on 27-04-2019 when admittedly whatsoever document that was missing on the date on which the proceedings had been initiated i.e. E-WAY BILLS, had since been generated on its validity period. This is the first lacuna which stares at the face of the respondent in the present proceeding.

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