No Penalty for Not Generation of E-way Bill – Section 129

Section 68 of CGST Act 2017

68. (1) The Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such DOCUMENTS and such devices as may be prescribed.

(2) The details of DOCUMENTS required to be carried under sub-section (1) shall be validated in such manner as may be prescribed.

(3) Where any conveyance referred to in sub-section (1) is intercepted by the proper officer at any place, he may require the person in charge of the said conveyance to produce the DOCUMENTS prescribed under the said sub-section and devices for verification, and the said person shall be liable to produce the DOCUMENTS and devices and also allow the inspection of goods.

FOR CARRYING OUT PROVISION OF SECTION 68, RULE 138 AND 138A PRESCRIBED BY GOVERNMENT

Section 2(41) of CGST Act 2017

“Document” includes written or printed record of any sort and electronic record as defined in clause (t) of section 2 of the Information Technology Act, 2000;

Section 2 clause (t) of IT Act, 2000

“Electronic record” means data record, or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche 

Facts and their Analysis

It is clear that on the basis  of above mention sections that DOCUMENTS means Tax invoice or bill of supply or delivery challans which are issued by which the fact of sale (Supply) is proved along with seller’s and purchases identity

Expl. 2 of rule 130(1) also confirm the fact of being document such as tax invoice or bill of supply or delivery challan. Which is confirmed by Expl. 2 as reproduced below.

Conclusion of above mentioned sections

Tax invoice or bill of supply and delivery challan  are  documents  while  e-way  bill  is neither  a “ electronic  record‟ nor a “document”, as generated on a common portal to carry with the goods in transit after having furnished information’s before movement of the goods. But a form as per clause (b) or rule 2 of GST rule 2017

Rule 138 and Rule 138 A

• Every registered person who causes movement of goods of consignment value exceeding fifty thousand rupees—
• in relation to a supply; or
• for reasons other than supply; or
• due to inward supply from an unregistered person,

shall, before commencement of such movement, furnish information relating to the said goods in Part A of FORM GST EWB-01, electronically, on the common portal.

138A ; Documents and devices to be carried by a person-in-charge of a conveyance.–

(1) The person in charge of a conveyance shall carry—

(a) the invoice or bill of supply or delivery challan, as the case may be; and

(b) a copy of the e-way bill or the e-way bill number, either physically or mapped to a Radio Frequency Identification Device embedded on to the conveyance in such manner as may be notified by the Commissioner.

(2) A registered person may obtain an Invoice Reference Number from the common portal by uploading, on the said portal, a tax invoice issued by him in FORM GST INV-1 and produce the same for verification by the proper officer in lieu of the tax invoice and such number shall be valid for a period of thirty days from the date of uploading.

(3) Where the registered person uploads the invoice under sub-rule (2), the information in Part A of FORM GST EWB-01 shall be auto-populated by the common portal on the basis of the information furnished in FORM GST INV-1.

(4) The Commissioner may, by notification, require a class of transporters to obtain a unique Radio Frequency Identification Device and get the said device embedded on to the conveyance and map the e-way bill to the Radio Frequency Identification Device prior to the movement of goods.

(5) Notwithstanding anything contained clause (b) of sub-rule (1), where circumstances so warrant, the Commissioner may, by notification, require the person in-charge of the conveyance to carry the following documents instead of the e-way bill- (a) tax invoice or bill of supply or bill of entry; or (b) a delivery challan, where the goods are transported for reasons other than by way of supply.

Expl. 2 – For the purposes of this rule, the consignment value of goods shall be the value, determined in accordance with the provisions of sec. 15, declared in an Invoice, a bill of supply or a delivery challan, as per case may be, issued in respect of the said consignment and also includes the Central tax, State or Union territory tax, integrated tax and cess charged, if any in the document and shall exclude the value of exempt supply of goods where the invoice is issued in respect of both exempt and taxable supply of goods

Section 129 of CGST Act 2017

1)  Notwithstanding  anything  contained  in  this  Act, where  any  person  transports  any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and DOCUMENTS relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released,––

Section 164 of CGST Act 2017

(1) The Government may, on the recommendations of the Council, by notification, make rules for carrying out the provisions of this Act.

(2) Without prejudice to the generality of the provisions of sub-section (1), the Government may make rules for all or any of the matters which by this Act are required to be, or may be, prescribed or in respect of which provisions are to be or may be made by rules.

(3) The power to make rules conferred by this section shall include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Act come into force.

(4)  Any rules made under sub-section (1) or sub-section (2) may provide that a contravention thereof shall be liable to a penalty not exceeding ten thousand rupees

Analysis

It is noted that as discussed above e-way bill – 01 is not a document but a form which consists of a plan or scheme in transit. As such carrying of a “document” i.e. Tax invoices or bill of supply are said to be carried with goods as per sec. 68.

Then 138A is to be complied but absence of a copy of e-way bill i.e. (form) in physical form certainly invite or attract the contravention of the rule U/s 138A(b) but not the contravention of the Act

Final Conclusion

Absence  of  e-way  bill  or  non generation of e-way bill, being a technical mistake or breach may be contravention  of  the  rule  138  &  138A  as  such  it  will  result  into imposition of penalty Rs. 10,000/. As such seizure of goods or conveyance U/s 129 of CGST Act in the absence of e-way bill or on mere minor mistake in e-way bill would be unauthorized, illegal except in the case of non-carrying of a documents i.e. Tax invoice or bill of supply.