| | | |
| Is intent to
evade be seen
in case of
Movement of
Goods with
Expired E-way
Bill | Pushpa Devi Jain
v. Assistant
Commissioner of
Revenue, [2023]
149 taxmann.com
206 (Calcutta) (03-
03-2023) | Petitioner relied upon the judgement delivered by the Hon'ble Supreme Court in Satyam Shivam. The High Court observed that apart from a bald statement
that the vehicle broke down in the midst of the journey, there was no document in support of such statement. As long as the provision to revalidate the e-way
bill remained in the rule book, the same was required to be strictly complied despite the fact that the same may be practically difficult to implement. There is no
scope to exercise discretion at any stage and opportunity of hearing was given to allow the person in charge of the goods and/or the conveyance to produce
relevant documents to rebut the charge and not for examining the reason or ground for not being able to act in accordance with law. This Judgement was
reversed in Pushpa Devi Jain v. Assistant Commissioner of Revenue [2023] 152 taxmann.com 239 (Calcutta) (21-03-2023) has been discussed
hereinafter |
| Levy of Penalty
dropped for
failure to extend
validity of Eway
Bill | Pushpa Devi Jain
v. Assistant
Commissioner of
Revenue [2023]
152 taxmann.com
239 (Calcutta) (21-
03-2023) | The goods were detained as e-way bill had expired at 11:59 hours on 22nd April, 2022 and it had to be revalidated by 8 a.m. on 23rd April, 2022. However, said
date was a Saturday and the vehicle was intercepted at 8.52 a.m. There was no other allegation against the petitioner. The High Court considered the peculiar
facts of the case and observed that there was no lack of bona fide on the part of the appellant to state that there was wilful misconduct committed by the
appellant while transporting the goods. There was every possibility that even if an application was made for extension of the e-way bill within the time
permitted, 23rd April, 2022 being a Saturday, the e-way bill, in all probabilities, would not have been revalidated within the eight hours period.
Therefore, the appeal was allowed and the order was set aside by holding that considering the facts and circumstances of the case, the authority could not
have imposed penalty on the appellant |
| Intent to Evade
not to be seen in
cases wherein
goods
transferred to
another vehicle
and E-way Bill
not generated | Asian Switchgear
(P.) Ltd. v. State
Tax Officer [2023]
149 taxmann.com
120 (Calcutta) (03-
03-2023 | The Court observed that the moment the goods are unloaded from the vehicle in respect of which e-way bill was generated and loaded in a different
vehicle without any e-way bill a statutory breach is committed, liable to be dealt with in accordance with the statute. It is not for the authority to
ascertain the reason as to why such action has been undertaken. There is no requirement in law to verify the reason for transporting goods in a vehicle
without a proper e-way bill. The Court further observed that decision of Hon’ble Apex Court in Satyam Shivam does not fit into the facts of the present case,
and accordingly, the ratio laid down therein cannot be made applicable in the facts and circumstances of the instant case. On the other hand, it relied upon the
precedence laid down by Hon’ble Apex Court in the matter of Guljag Industries wherein it was held that breach of statutory provision would attract levy of
penalty and the officer does not have any authority to either reduce or waive the penalty. They further held that decision of the same High Court in Ashok
Kumar Sureka cannot be treated as precedent. The High Court thereafter looking to admission of the petitioner that the vehicle in which the goods stood
transferred for being transported allegedly to the pre-recorded destination, did not have an e-way bill, held that Section 129 will be attracted in such a situation |
| No Intent to
evade to be
checked if
goods
transported
without valid Eway Bill | Abinash Kumar
Singh v. State of
West Bengal
[2023] 148
taxmann.com 393
(Calcutta) (03-03-
2023) | The Court observed that when the vehicle of the petitioner was intercepted, the same did not have a valid e-way bill. The e-way bill, on the basis of which the
goods were transported, expired prior to the vehicle reaching the final destination. Regarding no intent to evade being present, the High Court observed that if
the contention of the petitioner is to be accepted, then the authority will be flooded with a plethora of reasons from the errant transporters for not being able to
deliver the goods within time. In such a situation, the authority may exercise discretion either to accept or reject the ground put forth for explaining the delay in
transportation. The same will give rise to an anomalous situation when the authority may adopt pick and choose method as per their choice and tend to exercise
discretion arbitrarily. Law does not provide such unbridled power and right to the authority. In case of statutory violations, the statutory consequential steps are
required to be undertaken. Thus, it was held that as section 129 opens with a non obstante clause which lends a mandatory character to the same,
thus petitioner might or might not have been directly responsible for the delay in issuance of the gate pass, but he was certainly at fault. |
| No Intent to
Evade to be
established in
case of
movement with
Expired E-Way
Bill | Ashok and Sons
(HUF) v. Joint
Commissioner,
State Tax [2023]
147 taxmann.com
582 (Calcutta) (06-
02-2023) | The Court observed that petitioner's consignment was found lying within the territory of the state for more than three days. The E-Way bill had expired. The
driver of the vehicle stated that the vehicle suffered a breakdown. In support of his contention he failed to produce proper document. The petitioner had the
opportunity to extend the validity of the E-Way bill when the goods vehicle was allegedly had mechanical defect. The petitioner did not take any step for
extension of E-Way bill. The High Court also held that the ratio laid down in Hanuman Ganga Hydroprojects (P.) Ltd. (supra) and Ashok Kumar Sureka (supra)
are not applicable in the instant case. The High Court held that when the E-Way bill has not been extended it would be presumed that the consignment
was sent to the State of West Bengal and therefore, the respondent authority was lawfully permitted to impose penalty under section 129 as well as
the SGST as the goods were found to be detained in the territory of the State |
| Vehicle
intercepted with
Cancelled Eway Bill and
matter
remanded back
to establish
bonafide | Rumki Biswas v.
Senior Joint
Commissioner,
Commercial Taxes
[2023] 148
taxmann.com 359
(Calcutta) (01-12-
2022) | In the instant matter appellant had generated part A of the e-way bill on 22nd March, 2022 and part - B was generated on 24th March, 2022. However, since the
goods could not be loaded into the vehicle, the appellant cancelled part A of e-way bill dated 22nd March, 2022 and generated new part A e-way bill on 24th
March, 2022. When the vehicle was intercepted, the driver was carrying part B of e-way bill in respect of which part A has been cancelled. The High Court
observed that the short point, which was required to be canvassed by the appellant before the appellate authority was to establish the bona fides
of the appellant and to prove that there was no intention to evade payment of duty. Since this aspect was not adequately dealt with by the appellate
authority and taking note of the peculiar facts and circumstances arising in the case on hand, matter was remand back to the appellate authority
for a fresh consideration bearing in mind the conduct of the appellant. The appellant was directed to place all the materials in support of their claim
without unnecessary burdening the appellate authority |
