Amit Mines Private Limited & Anr. Vs Assistant Commissioner of State Tax (Calcutta High Court)
The Calcutta High Court, in Amit Mines Private Limited & Anr. Vs Assistant Commissioner of State Tax, Bureau of Investigation (South Bengal) & Ors., set aside a GST penalty imposed under Section 129 of the WBGST/CGST Act, 2017, after an e-way bill expired during transportation of 29.630 MT of sponge iron. The consignment was dispatched on 12 December 2023 through Sri Balaji Constructions and Logistics for delivery to Amit Metaliks Limited. The e-way bill, generated on 3 December 2023, expired around midnight on 13/14 December 2023, and the vehicle was intercepted at approximately 1:39 p.m. on 14 December 2023. The department alleged failure to revalidate the e-way bill within eight hours and questioned why a distance of 29 kilometres had not been covered within two to three hours. The goods were released after payment of penalty, but the adjudicating authority confirmed the penalty on 27 December 2023, and the appellate authority upheld it on 29 August 2024.
The petitioners contended that the vehicle had broken down during transit and that the delay was unintentional. They argued that the appellate authority had failed to examine their explanation properly, particularly when no intention to commit tax fraud had been established. The department maintained that proof of mens rea was unnecessary and that the petitioners had not produced supporting documents despite opportunities. The High Court observed that although the petitioners had not raised the defence when seeking release of the goods, they had specifically pleaded the vehicle breakdown in their statutory appeal. The Court noted that documentary evidence of roadside repairs might not ordinarily be available and that the appellate authority should have considered the explanation in its factual context.
Considering the approximately 15-hour delay, the stated vehicle breakdown and the absence of allegations or material demonstrating wilful misconduct, Justice Raja Basu Chowdhury held that the penalty ought not to have been imposed. The Court set aside the order dated 27 December 2023 under Section 129(3), the appellate order dated 29 August 2024 and the demand recorded in GST APL-04. Since the petitioners had already paid the penalty, they were permitted to apply for a refund, which the authorities were directed to consider within two weeks of the application. The writ petition was accordingly disposed of.
Cases Discussed
- Pushpa Devi Jain Vs Assistant Commissioner of Revenue, Bureau of Investigation, North Bengal Headquarters & Ors., WPA 178 of 2023 (Calcutta High Court) — The appellate authority relied on this decision to confirm the penalty. The petitioners pointed out that the decision had subsequently been interfered with by the Division Bench.
- Pushpa Devi Jain Vs Assistant Commissioner of Revenue, Bureau of Investigation, North Bengal Headquarters & Ors., 2024 (3) Goods and Services Tax Advices 289 (Calcutta High Court, Division Bench) — Cited by the petitioners for the proposition that a penalty was not justified where there was no lack of bona fides.
- Asian Switchgear Private Limited Vs State Tax Officer, Bureau of Investigation, North Bengal Headquarters & Ors., 2024 (3) Goods and Services Tax Advices (Calcutta High Court) — Relied upon regarding the obligation to consider the defence raised by the taxpayer.
- M/s Maa Amba Builders & Anr. Vs Assistant Commissioner of Revenue, State Tax Bureau of Investigation, North Bengal HQ & Ors., 2024 (162) taxmann.com 660 (Calcutta High Court) — Relied upon concerning consideration of the taxpayer’s defence in proceedings involving detention and penalty.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1. Challenging an order passed by the appellate authority dated 29th August, 2024 under Section 107 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act), the instant writ petition has been filed. It is the petitioners’ case that the petitioners’ claim to be engaged in a business of iron and steel. In usual course, the petitioners had contracted for supply of 29.630 MTs of sponge iron from Shyam sel & power Limited. The aforesaid consignment of 29.630 MTs. of sponge iron was dispatched on 12th December, 2023 through the transporter, namely, Sri Balaji Constructions and Logistics for being delivered to Amit Metaliks Limited.
2. Records would reveal that while in transit the validity of the e-way bill generated on 3rd December, 2023 expired on the midnight of 13th/14th December, 2023 and the vehicle along with the goods were intercepted on 14th December, 2023 at around 1:39 p.m. From the notice in MOV 07 dated 25th December, 2023, it would transpire that the primary allegation in the said notice is with regard to the failure of the petitioners to re-validate the e-way bill within the period of 8 hrs. and that the distance of 29 kms. ought to have been covered ordinarily in 2 to 3 hours. The petitioners appear to have obtained release of the goods vide release order dated 27th December, 2023 upon payment of penalty as provided for in Section 129 (1)(a) of the said Act. The petitioners, however, did not respond to the above show-cause and an order under Section 129(3) of the said Act was passed on 27th December, 2023 itself.
3. Being aggrieved the petitioner had preferred an appeal. The appellate authority had disposed of the appeal by confirming the penalty vide order dated 29th August, 2024 by relying on the Judgment in the case of Pushpa Devi Jain v. Assistant Commissioner of Revenue, Bureau of Investigation, North Bengal Headquarters & ors. in WPA 178 of 2023.
4. Mr. Roy Chowdhury, learned advocate appearing for the petitioners would submit that though the petitioners had specifically made out a case that there had been breakdown of the vehicle and that the petitioner had no intention to commit any tax fraud, such aspect had not been appropriately considered. He would submit that the appellate authority had failed to take note of the fact that there was no lack of bonafide and as such in the facts, no penalty could have been imposed. In support of his contention that the appellate authority was bound to consider the defence case, he has placed reliance on the judgment in the case of Asian Switchgear Private Limited v. State Tax officer, Bereau of Investigation, North Bengal, Head Quarters & Ors. reported in 2024(3) Goods and Services Tax Advices. He has also placed before this Court judgment delivered by this Court in the case of M/s Maa Amba Builders & Anr. v. The Assistant Commissioner of Revenue, State Tax Bureau of Investigation, North Bengal HQ & Ors., reported in 2024(162) taxman.com 660 (Calcutta). According to him, the Judgment delivered in the case of Pushpa Devi Jain (supra) was interfered with by the Division Bench of this Court in the case of Pushpa Devi Jain v. Assistant Commissioner of Revenue, Bureau of Investigation, North Bengal Headquarters & Ors., reported in 2024(3) Goods and Services Tax Advices 289 wherein the Division Bench had held that as there was no lack of bonafide of the appellant the authority could not impose penalty on the appellant. Having regard thereto, he would submit that the aforesaid imposition of penalty cannot be sustained.
5. Mr. Sanyal, learned advocate appears on behalf of the respondents. He would submit that there is no requirement for the respondents to establish mens rea. Further, having regard to the fact that despite being afforded with repeated opportunity, the petitioners could not explain out the circumstances leading to delay in transportation of the goods, and no documents to establish the defence case was placed on record, the order cannot be set to be unjust. No interference is called for.
6. Having heard the learned advocates appearing for the respective parties, I find that having regard to the Judgment delivered in the case of Asian Switchgear Private Limited (supra) and the Judgment delivered by this Court in the case of M/s. Maa Amba Builders & Anr. (supra) ordinarily, when a defence is set up the concerned authorities are required to take note of such defence. Although in the instant case, the petitioner did not set on a defence at the time of seeking release, the petitioner did prefer an appeal from the order passed under Section 129(3) and had categorically pleaded that there had been breakdown of the vehicle in paragraph 6 of the statement of facts filed in connection with the appeal. To morefully appreciate the same, the relevant paragraph is extracted herein below:
“6. The driver of the vehicle started journey on 12.12.2023 in the night. But unfortunately when it was near DVC More, the vehicle no. WB 37B 7070 broke down. Thereafter the driver searched out for a truck repairing shop but no repairing shop was there nearby of the place of breakdown. The driver of the vehicle had to wait till 8 a.m. on the next morning, i.e., on 13.12.2023 for opening of a truck repairing shop at very far from the place of breakdown of the vehicle. The driver went at the repairing shop and brought the mechanic from the said shop at around 10:30 a.m. Thereafter the mechanic started repairing, but it took a long time and ultimately the mechanic completed his job at around 1:30 p.m. on the next day, i.e., on 14.12.2023. But the driver could not notice that by that time, the validity of the E-Way Bill expired on 13.12.2023.”
7. I however find that the appellate authority has brushed aside such contention by recording that the petitioners has failed to file any supporting documents. Having regard to the case made out by the petitioners in relation to breakdown and attempts made to repair the same enroute, by a mechanic ordinary, documents may not be available. Further taking note of the fact that there had been only 15 hrs. delay, I am of the view, having regard to the peculiar facts, considering the petitioners’ case that its vehicle had suffered a break down and there being no allegation or material on record to show that the petitioners were involved in wilful misconduct while transporting the goods, I am of the view that the penalty ought not to have been imposed. I, thus, proposed to and do hereby set aside the orders dated 27th December, 2023 passed under Section 129(3) of the said Act as also the appellate order dated 29th August, 2024 including the demand raised in GST APL 04. The petitioners having paid the penalty will be at liberty to apply for refund, which shall be considered by the authorities within two weeks from filing such application.
8. With the above observations and directions, the writ petition is disposed of.
9. All parties shall act on the basis of serve copy of this order duly downloaded from the official website of this Hon’ble Court.
