Godrej And Boyce Manufacturing Co. Ltd Vs State of U.P (Allahabad High Court)
1. In all these writ petitions seizure orders and notices issued under sections 129 (1) and (3), respectively, by various authorities, mainly on the ground that E-Way Bill-01 under U.P. Goods and Service Tax Act 2017 (hereinafter referred to as U.P.G.S.T ACT) read with Integrated Goods and Services Tax Act 2017 (hereinafter referred to as I.G.S.T. Act 2017) and Rules framed thereunder were not accompanied by Transporters when goods were intercepted within State of U.P. during Intra State or Inter State transportation, have been challenged on the ground that there is no requirement of accompanying said E-Way Bill; provisions of Provincial Statute cannot override provisions of Central Statue and, in any case, omission is only indeliberate and unintentional.
(I) Writ Tax No. 587 of 2018
2. This writ petition under Article 226 of Constitution of India has been filed challenging order dated 21st March 2018 passed by Assistant Commissioner, State Commercial Tax, Mobile Squad, Unit-I, Shamli in purported exercise of powers under Section 129 (1) of UPGST Act, 2017 on the allegation that in respect of goods transported by Vehicle No. DL-1LW-5527, aforesaid authority has reason to believe that for evasion of State Goods and Service Tax (hereinafter referred to as “SGST”) goods have been transported by said vehicle. Estimated value of goods constituting machines and parts, mentioned in the order is Rs. 9,85,000/-. Petitioner M/s. Godrej and Boyce Manufacturing Company Limited has transported six loading/unloading machines from its manufacturing unit situated at Thane, (State of Maharashtra) through two tax invoices dated 16.03.2018, to its Ghaziabad office, for the purpose of being used at Warehouse of M/s. Alstom Manufacturing India Pvt. Limited, Saharanpur as inter unit stock. Aforesaid goods were transported through M/s. Delhi Bombay Goods Carrier, Mumbai vide GR No. 41448 dated 16.03.2018 by vehicle no. DL-1LW-5527. Petitioner company downloaded Central Government E-Way Bill at its Thane unit for invoice no. B020101800000130 dated 16.03.2018. Due to bonafide omission, no Central E-Way Bill for remaining goods could be downloaded. Aforesaid E-Way Bill was for four items of machines mentioned therein. Remaining two items of machines were subjected to tax invoice no. D020101800000131 but no E-Way-Bill with respect to aforesaid invoice was downloaded. In transit goods were intercepted by respondent authorities on 20.03.2018 and finding that E-Way Bill in respect of Government of U.P. was not available with goods, same were detained. Thereafter, Transporter downloaded said E-Way Bill on 21.03.2018 and presented the same before Assistant Commissioner but on the same date he passed seizure order impugned in present petition. A show cause notice under section 129 (3) has also been issued by Assistant Commissioner, requiring petitioner to show cause up to 28.03.2018 as to why tax and penalty of Rs. 1,87,300/- may not be imposed upon the petitioner. The aforesaid order of seizure has been challenged on the ground that mistake was unintentional, Assistant Commissioner has no jurisdiction to pass order of seizure as there is no requirement of carrying any other E-Way Bill under U.P.G.S.T Act, 2017 and Rules framed thereunder.
(II) Writ Tax No. 454 of 2018
3. This writ petition has been filed by M/s. LG Electronics India Limited assailing interception memo dated 15.03.2018, seizure order dated 16.03.2018 and show cause notice dated 16.03.2018 issued by Assistant Commissioner, State Commercial Tax Division Mobile Squad III, Sonbhadra. This writ petition has also challenged Notification dated 21.07.2017 issued by State of U.P. making carrying on E-Way Bill-01 for import of goods worth Rs. 50,000/- from out side the State in State of U.P. mandatory, and also letters dated 06.02.2018 and 18.02.2018 issued by State Government. Petitioner is a Private Limited Company engaged in manufacturing of electronic goods and items having its principal place of business at Plot No. 51, Udyog Vihar, Surajpur Kasna Road, Greater Noida, Gautam Budh Nagar (State of U.P.). It has several manufacturing units as well as Warehouses in different States across the country. Petitioner is registered in State of Jharkhand with Goods and Service Tax Department (hereinafter referred to as “G.S.T. Department”) and has been allotted GSTIN-20AAACL1745QIZI. In State of U.P. also petitioner is duly registered with U.P.G.S.T Department and has been allotted GSTIN-09AAACL 1 745QIZ2. Petitioner has a warehouse in Ranchi (State of Jharkhand). Goods in dispute were transported from Ranchi to Gautam Budh Nagar and intercepted. The goods were transported by M/s. Saluja Freight Carriers which is also registered with G.S.T Department bearing GSTIN-06AUKPS7618E1ZC. The goods were loaded on vehicle no. HR3SV0769 against G.R. No. 3001-3002 dated 14.03.2018 issued by Transporter to petitioner. Tax invoices issued in respect to aforesaid goods were numbered as STNAKW2018647, STNAKW2018648 and STNAKW2018649 dated 13.03.2018. All the requisite details of transportation of said goods were mentioned in receipts issued by Transporter. Requisite documents were with driver of vehicle. The vehicle was intercepted by Mobile Squad Team of Uttar Pradesh Commercial Tax Division, (hereinafter referred to as “UPCTD”) and detained at Raparganj, District Sonbhadra by Assistant Commissioner Mobile Squad III. Interception memo dated 15.03.2018 at 10:30 A.M was issued and handed over to driver of vehicle. Memo of interception was issued on the ground that driver of vehicle was not carrying E-Way Bill 01, though in possession of original tax invoices issued by Consignor and LR receipts issued by Transporter. Thereafter physical verification was made by Assistant Commissioner who submitted report dated 16.03.2018 stating that goods worth more than Rs. 50,000/- being interstate supply were being transported but not accompanied by E-Way Bill-01. Subsequently, Assistant Commissioner passed a seizure order under section 129 (1) of U.P.G.S.T. Act 2017 on 16.03.2018 and issued a show cause notice proposing recovery of tax of Rs. 1163472/- and penalty of the same amount i.e. total Rs. 2326944/-. It has been challenged on the ground that there is no provision for carrying of E-Way Bill-01, while the goods are in transit for interstate transfer and impugned orders are without jurisdiction.
(III) Writ Tax No. 455 of 2018
4. This writ petition has been filed by M/s. Bharti Airtel Telecommunication Company, having its registered office at New Delhi. It is engaged in providing cellular telephony services in different areas of telecom pursuant to telecom license granted by Government of India Department of Telecommunication. It has various offices in State of U.P. including at Lucknow and Varanasi. It is duly registered under U.P.G.S.T Act 2017 having GSTIN No. 09AAACB2894GIZP. Petitioner transferred stock by two consignments of eight boxes each, of telecom goods from its New Delhi office to Varanasi. It generated two separate E-Way Bill-01 giving details of both the transactions including details of goods and vehicle number. These two E-Way Bills numbered as 1803W177918800367522 and 1803W177918800369265 dated 12.03.2018. The goods were transported through GIR Movers Pvt. Limited by vehicle no. UP32F/N6684. Petitioner also issued invoices-Cum-Challan no. DLG25723 and DLG25727 dated 12.03.2018 for two transactions after charging Integrated Goods and Service Tax (hereinafter referred to as “I.G.S.T Act”) at the rate of 18%. When goods were in transit from Delhi to Varanasi, the vehicle in which they were being transported i.e. UP32F/N6684, broke down. Hence goods were transferred to another vehicle no. DL1GC/3360 at Hathras. Aforesaid vehicle DL1GC/3360 while crossing Commercial Tax Department check post, at about 4:30 P.M. on 13th March 2018 was intercepted by Assistant Commissioner. Finding different vehicle number in the documents, goods were detained. Interception memo dated 13.03.2018 issued by Assistant Commissioner mentioned this fact. Though Transporter explained reason for transportation of goods in different vehicle, but Assistant Commissioner i.e. respondent 3 passed seizure order dated 14.03.2018 under section 129 (1) and also issued notice dated 14.03.2018 under section 129 (3) of UPGST Act 2017, requiring petitioner to show cause why tax of Rs. 12,76,155/- and penalty of same amount be not realized from petitioner. Seizure order dated 14.03.2018 and show cause notice of the same date have been challenged by this petitioner on the ground that goods were transported in interstate transaction governed by provisions of IGST Act and therefore, governed by Central Goods and Service Tax Act 2017 (hereinafter referred to as “CGST Act”) and Rules framed thereunder. The mechanism of E-Way Bill under Central Goods and Service Tax Rules 2017 (hereinafter referred to as “CGST Rules 2017”) have not been implemented by Central Government. Hence, E-Way Bill alongwith goods were not carried by Transporter and that cannot be a ground for seizure or imposition of penalty. Hence, there is no violation of any provisions of IGST Act 2017/CGST Act 2017 or the Rules framed thereunder. Therefore, provisions of section 129 (1) of UPGST Act cannot be invoked against petitioner. UPGST Act 2017 cannot transgress upon field occupied by IGST Act 2017 and Notification issued under Rule 129 is beyond the power conferred by UPGST Act 2017.
(IV) Writ Tax No. 462 of 2018
5. This writ petition has been filed under Article 226 of Constitution of India by M/s. Guala Closures (India) Pvt., Ltd., having its Registered Office D-1, Sesa Ghor, Patto, P.O. Box No. 101, Panjim, Goa, challenging order of seizure dated 05.03.20 18 and show cause notice of same date. Petitioner Company, engaged in manufacturing Nip Cap (Bottle Cap), has its manufacturing unit at Survey No. 4/44, 4/14, National Highway, No. 8, Kerala Village, Bavia Taluka, District Ahmadabad, (Gujarat). M/s. Pernod Ricard India, (P) Ltd., Daurala, Meerut, U.P. issued a purchase order and pursuant thereto for transporting goods, petitioner issued invoice No. A2094 dated 23.02.2018 for Rs. 882,961.00/- after charging IGST at the rate of 18%. Petitioner also generated E-Way Bill dated 23.02.2018. Goods were transported by M/s. Agarwal Packers & Movers Ltd., who issued G.R. dated 23.02.2018 and transported goods vide vehicle No. DL-IM-9213. Purchaser, also provided E-Way Bill-01 dated 26.02.2018, prescribed under U.P. Goods and Services Tax Rules 2017 (hereinafter referred to as “Rules”) which was valid up-to 15.03.2018 and same was given by petitioner to Transporter. The vehicle was intercepted on 5th March, 2018 by Assistant Commissioner VI, Ghaziabad and goods were detained on the ground that State E-Way Bill- 01, was not being carried by transporter. Thereafter a seizure order was issued on 05.03.2018 alleging that without E-Way Bill- 01 goods were being transported in State of U.P. from outside U.P. A show cause notice under section 129 (3) of U.P.G.S.T. 2017 was also issued on 05.03.2018. It is also challenged on the ground that respondents have no authority to intercept goods, detain, and pass order of seizure as there was no requirement of carrying E-Way Bill- 01 and provisions of provincial Statute cannot override provisions of Central Statute.
(V) Writ Tax No. 458 of 2018
6. This writ petition has been filed by M/s. RAS Polytex Pvt. Ltd having its manufacturing unit E-II, Ramnagar, Industrial Area, Chandauli (State of U.P.). It has assailed seizure order dated 09.03.2018 passed by Deputy Commissioner/Assistant Commissioner, Unit Chandauli and notice dated 09.03.20 18 passed under section 129 (3) of U.P.G.S.T. Act 2017. It has also sought a writ of certiorari for quashing Notification No. KA.NI.-1014/XI-9(52)/17-U.P. and U.P. Act-1-2017 ORDER-(31)-2017 dated July 21, 2017. The facts in brief, are that petitioner is a Pvt. Ltd. Company engaged in manufacture and sale of HDPE/P.P. bags and registered under G.S.T Act 2017. P.P. Compound is used by petitioner as raw material for manufacturing of bags and for said purpose placed an order of supply of P.P. compound to M/s. Kalpana Industries (India) Limited, situated at Village & Post Chaturbhujkathi, Kandua, P.S. Sankrail, Howrah (State of West Bengal). The aforesaid supplier booked consignment for transport of raw material to petitioner by Transporter M/s. Swastik Cargo Movers. Goods were being transported by truck no. UP63T-3207. Driver of vehicle was carrying requisite documents i.e. tax invoices, bilty and Central E-Way Bill. Goods were intercepted and detained on 09.03.2018 at 4:00 A.M. at Chandauli on the ground that same were imported in the State of U.P. from out side U.P. without E-Way Bill-01. Seizure order was passed under section 129 (1) on 09.03.2018 and it is also mentioned that U.P. E-Way Bill was not accompanied and Central E-Way Bill dated 07.03.2018 was generated on trial basis, therefore, it was not legally acceptable. Respondent 4 also issued notice under section 129 (3) proposing imposition of tax of Rs. 1,07,460/- and penalty of same amount i.e. Rs. 1,07,460/-.
(VI) Writ Tax No. 559 of 2018 & Writ Tax No. 560 of 2018
7. Both these writ petitions have been filed by same petitioner M/s. Rimjhim Ispat Limited, having its manufacturing unit at Industrial Area, Sumerput, District Hamirpur (U.P.) and registered office at 123/360, Fazalganj, Kanpur. In Writ Petition No. 559 of 2018 seizure order dated 11.03.2018 and show cause notice issued under section 129 (3) dated 17.03.2018 have been challenged, which have been passed by Assistant Commissioner GST/State Tax, Mobile Squad, 7th Unit Kanpur. Here petitioner sold Stainless Steel Bright Bars to M/s. M.R.S. Corporation Aligarh for which tax invoice no. 008573 dated 08.03.2018 was generated for a total amount of Rs. 10,13,673/-. The said goods were transported from petitioner’s factory at Hamirpur to M/s. M.R.S Corporation, Kanpur through Shree Balaji Transport Company by truck no. UP78CT 4540 E-Way Bill-02 dated 08.03.2018 was generated giving all requisite information. However, respondent 2 intercepted the vehicle and detained at Kanpur on the ground that since E-Way Bill-02 had already expired therefore, there was no valid E-Way Bill-02 being carried by Transporter. Consequently seizure order dated 11.03.2018 was passed and a show cause notice proposing tax of Rs. 77,314/- (CGST), 77,314/- (SGST) and penalty of same amount was issued.
8. In Writ Petition No. 560 of 2018 seizure order dated 07.03.2018 and notice under section 129 (3) is dated 13.03.2018 issued by Assistant Commissioner Mobile Squad Kannauj are under challenge. Here S.S. Rods purchased by M/s. Bansal Wire Industries Limited Unit-II, B-3, Site II, Loni Road Industrial, Mohan Nagar District Ghaziabad were being transported through Transporter M/s. Buland Road Transport Company by Truck no. UP78BT2 199. Petitioner has generated tax invoice no. 08440 dated 28.02.2018 for goods worth Rs. 21,31,051/- which includes IGST. E-Way Bill-02 dated 28.02.2018 was also generated by petitioner giving all details. Same were intercepted and detained by Assistant Commissioner Mobile Squad, Kannauj on the ground that E-Way Bills had already expired. Consequently seizure order was passed on 07.03.20 18 and a show cause notice under section 129 (3) were issued on the same date, proposing tax of Rs. 3,27,420/- and penalty of same amount.
(VII) Writ Tax No. 478 of 2018
9. This writ petition has been filed by M/s. Gaurang Products Pvt. Ltd., having its Unit at Industrial Area, Ghaziabad challenging, seizure order dated 19.03.2018 and show cause notice of the same date issued by Assistant Commissioner, State/Commercial Tax, Mobile Squad, Unit-12, Kanpur. Petitioner is engaged in manufacturing M.S. Tubes & Pipes and duly registered with GST Department of U.P. having GSTIN No. 09AACCG0182L120. It has supplied 4300 Meters of M.S. Tubes and Pipes to U.P. Jal Nigam and same was to be delivered at Jal Nigam office at Allahabad. Petitioner prepared invoice no. 5267 dated 16.03.2018 in respect of 266.71 meters of M.S. Tubes & Pipes after charging IGST. The goods were handed over to M/s. Pragati Logistic Pvt. Ltd., Transporter against GR dated 16.03.2018 and same were transported by truck no. UP13T-0693. E-Way Bill-02 was also downloaded by petitioner on 16.03.2018 at 7:01 PM and it was carried by driver of vehicle. On 19.03.2018 at 08:44 AM vehicle was intercepted at Kanpur by respondent 3, who found that validity period of E-Way Bill-02 had already expired. The goods were accordingly seized by him and seizure order was passed on 19.03.2018. Same day notice under section 129 (3) of UPGST was also issued proposing to impose tax of Rs. 1,23,764/- and equivalent amount of penalty.
(VIII) Writ Tax No. 464 of 2018
10. This writ petition has been filed by M/s. Aditya Birla Fashion and Retail Ltd., Rave Multiplex Complex, V.I.P. Road, Kanpur. Petitioner placed an order for supply of certain goods (advertising material) to M/s. J.K. Advertising, J-10, Jahangeerpuri, New Delhi in respect of said goods. 7 invoices were prepared on 11/12.03.2018 and goods were transported through Transporter M/s. Maa Chamunda Devi Transport Service, Tilak Nagar, New Delhi, through truck no. HR55AA-0252. Transporter issued four separate GRs on 12.03.2018 and also downloaded a consolidated E-Way Bill for the aforesaid transaction from the website of Central Government on 12.03.2018. While in transit, goods were intercepted by Assistant Commissioner Mobile Squad Unit, Etah, in the morning on 13.03.2018 and same were detained on the ground that E-Way Bill-01 of U.P. Government was not available alongwith goods. After getting knowledge seven E-Way Bill-01 were downloaded from the website of Commercial Tax Department of Government of U.P. on 13.03.2018 and placed before respondent 3. However, respondent 3 has passed seizure order on 14.03.2018 under section 129 (1) and also issued notice under section 129 (3). Copy of notice has not been filed. Petitioner is only challenging seizure order 14.03.2018.
(IX) Writ Tax No. 551 of 2018
11. This writ petition has been filed by M/s. Navyug Air Conditioning, Hotel Rainbow Market, Railway Road, Bazaria, Ghaziabad. It is a proprietorship firm engaged in trading of Air conditioners and its parts. Petitioner placed purchase order of compressor assembly with accessories-FOW to M/s. Tecumseh Products India Private Limited, 38 Km Stone Delhi-Mathura Road, Ballabgarh (Haryana). The said suppler prepared invoice no. IBW/DOM/SALE1555 dated 23.03.2018 for Rs. 10,14,139/- including IGST at 18%. The goods were handed over for transportation by truck no. DL-ILY-2278 for delivery at Ghaziabad. The goods were intercepted by Assistant Commissioner Mobile Squad, Unit-V, Noida on 24.03.2018 and detained on the ground that goods did not accompany E-Way Bill-01 prescribed under UPGST Rules 2017. A seizure order was passed on 25.03.2018 and notice under section 129 (3) was also issued on the same date proposing levy of tax of Rs. 1,54,699/- and penalty of the same amount.
(X) Writ Tax No. 87 of 2018
12. This writ petition has been filed by M/s. Proactive Plast Pvt. Ltd., Plots No. 274, 275, 280, 281, Ecotech-1 Extension, Kasna, Greater Noida, District Gautam Budh Nagar. He has filed this writ petition challenging seizure order dated 20.01.2018 and notice issued on same date under section 129 (1) and (3) of UPGST Act 2017. Petitioner company is engaged in manufacture of packing material and registered under UPGST Act 2017, having GST TIN No. 09AADCP5536C1ZJ. Petitioner placed purchase order of raw material i.e. 2,500 Kg of NUCREAL AE Resin and 7,500 Kg of SURLYN SR Resin to a Ex-U.P. Registered dealer i.e. M/s. Fibro Plast Corporation, Mumbai, Maharashtra. The supplier who has registered office at Mumbai and its godown at Bhiwandi, (Maharashtra) had issued proforma on invoice dated 15.01.2018, indicating all the details. Goods were handed over to Transporter for transporting the same from Bhiwandi (State of Maharashtra) to Greater Noida by truck no. HR55X4835. For the purpose of E-way Bill Form 01, petitioner also generated Intermediate no. 1801W166944700522219 from online portal on 15.01.2018 and provided the same to supplier for transportation of goods. Supplier however, mentioned alongwith invoice, the details of documents supplied by petitioner as E-Way Bill-01. When vehicle entered U.P., it was intercepted at Noida, by Assistant Commissioner Mobile Squad, Sixth Unit, Noida and he detained goods on the ground of absence of E-Way-Bill-01, vide interception memo dated 19.01.2018. Thereafter, seizure order was passed on 20.01.2018 under section 129 (1) and notice under section 129 (3) was also issued on the same date proposing tax of Rs. 31,17,500/- and penalty of same amount.
13. In order to give a consolidated bird eye view of details of invoices, seizure orders, show-cause notices and the amount of tax/penalty proposed, a chart is being given as under:
