Case Law Details

Case Name : M/s K.B Enterprises Vs Asst. Commissioner State Taxes & Excise (Appellate Authority, Himachal Pradesh)
Appeal Number : Appeal No. 001/2019
Date of Judgement/Order : 07/12/2019
Related Assessment Year :

M/s K.B Enterprises Vs The Asst. Commissioner State Taxes & Excise (Appellate Authority, Himachal Pradesh)

GST Council vide circular No 64/38/2018 dated 14th September, 2018 and the HP circular no. 12-25/2018-19-EXN-GST-(575)-6009-6026 dtd 13th March 2019 valid from 14-09-2018 in para 5 provides that in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, proceedings under section 129 of the CGST Act may not be initiated in case of minor mistakes like error in one or two digits/characters of the vehicle number. Further Para 6 of the said circular states that in case of minor errors mentioned in Para 5, penalty to the tune of Rs. 500/- each under section 125 of the CGST Act and the respective HPSGST Act should be imposed (Rs.1000/- under the IGST Act) in FORM GST DRC-07 for every consignment. Further, the submission of Ld. respondent that the circular of CBIT dtd 14-09-2018 and the circular under the HPGST act is advisory in nature and not implementable by the proper officer is not acceptable. The said circular and the subsequent notification under the HPGST Act have to be followed and the benefit cannot be denied to the appellant for paltry errors of two digits in the vehicle number. The e-way bill has been duly generated and no mistake has been found in all other information entered in the EWB. The respondents have also not been able to prove beyond doubt nor submit any substantial evidence that the appellant was adopting the system of wrong mentioning of vehicle numbers in the EWB as their modus operandi to evade taxes.

Therefore, keeping in view the above stated facts the orders of ACST&E, Chamba are set-aside on the ground that the standard operating procedure mentioned in Circular No 64/38/2018 dated 14th September, 2018 and the HP circular no. 12-25/2018-19-EXN-GST-(575)-6009-6026 dtd 13th March 2019 valid from 14-09-2018 was not taken into consideration while imposing penalty in the instant case. The additional demand deposited by the appellant may be refunded and the penalty of Rs 500/- under SGST and Rs 500/- under CGST under section 125 of CGST/HPGST Act, 2017 is imposed on the taxpayer in accordance to GST Circular. The judgment in this case was reserved on 01.11.2019 which is released today.

FULL TEXT OF ORDER OF AUTHORITY OF ADVANCE RULING,HIMACHAL PRADESHA

At the outset, i would like to make it clear that the provisions of both the Himachal Pradesh Goods and Service Tax Act, 2017 and Central Goods & Service Tax Act, 2017 (thereinafter referred to as HPGST Act and CGST Act respectively) are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the HPGST Act would also mean a reference to the corresponding similar provisions under the CGST Act.

2. The above appeal has been filed against the order dated 03.12.2018 passed by the Asst. Commissioner State Taxes & Excise Officer-cum-Proper Officer, Chamba vide which an additional demand of Rs. 4,90,908/- (Four Lakhs, Ninety thousand, Nine Hundred and Eight Rupees Only) was created against the appellant under Section 20 of HPGST Act, 2019 read with section 129 of the HPGST, 2017.

3. The present appeal was filed before the Addl. Commissioner Cum-first — Appellate Authority, State Goods & Service Tax, Himachal Pradesh on 10thJan., 2019. The appeal was taken up for preliminary hearing admission on 04.02.2019. On the day of hearing Sh. Pankaj Arora (Ld. Adv) and Sh.Tarsem Sharma,Superintendent Chamba were present. Since the appeal was found in order, it was admitted and the departmental representative was directed to file written arguments in the case. Thereafter the case was heard on 26-02-2019 and 15-03-2019. Final hearing was held on 01.11.2019. On this date Sh. Nutan Mahajan, Asstt. Commissioner of State Taxes & Excise Chamba and Sh. Pankaj Arora (Ld. Adv.) were present. The case was heard and the judgment was reserved.

4. The brief facts of the case are:-

(i) That the appellant M/s K.B Enterprises is registered taxpayer vide GSTIN 02AEQPG0186F1ZS and is engaged is supply of taxable goods falling under chapter 24 of GST Tariff Act. The nature of business is wholesale and retail business.

(ii) That the appellant had sold Beedi having chapter heading 2403 vide invoice number KBE/1073 dated 29.11.2018 total value of Rupees 8,76,604 and levying CGST and SGST for Rs. 1,22,727/- each. The Vehicle No. HP 32A 3097 was carrying goods to transport the same to the purchasing dealer M/s Kaka Ram, Radhey Shyam Chamba, having GSTIN 02AANPL8404E1ZZ.

(iii) That the said vehicle was intercepted for checking by the Assistant Commissioner of State Taxes & Excise Chamba, and his staff on dated 01.12.2018. The driver/person in-charge of the vehicle had tendered the documents accompanying the vehicle such as invoice, Goods Receipt Note, E-way Bill in respect of the consignment.

(iv) That on scrutiny of the documents provided by the driver person/in- charge of the vehicle, the ACST&E found all the documents were in order except the mistake in vehicle no. mentioned as HP 32A1597 in part —B of the E — Way Bill No. 301067898208.

(v) That the goods were detained by commercial tax officer vide detention order GST MOV-06 dated 01.12.2018 Under Section 129(1) of the CGST/HPGST Act. Accordingly, the appellant got present before the detaining authority and stated that inadvertently a clerical mistake got happened while generation of E-Way Bill.

(vi) That the Ld. ACST&E did not heed to prayer and submission of the Appellant and imposed a penalty under section 129(1) of CGST/HPGST Act, 2017. Being aggrieved with the order, the Appellant filed the present appeal.

5. Ground of Appeal

At the outset, the Appellant most respectfully submitted that the Ld. Asstt. Commissioner of State Taxes and Excise of State Goods and Service Tax, Chamba, in complete disregard of the CGST Act as well as HPGST Act, 2017 and the submissions made before him by the Appellant, has passed the impugned Order and hence, it needs to be set aside.

(A)  ALL MATERIAL PARTICULARS OF THE INVOICE AND GOODS ARE MATCHING.

A.1 It is submitted that the Ld. Adjudicating Authority while confirming the demand and imposing the penalty has not considered the fact ‘that the physical characteristics of the goods detained by them were in consonance with tax invoice, Gr and E- Way- bill particulars as per Annexure-3. There was no deviation from the goods declared in the invoice and the goods transported by the appellant. The goods detained were accompanied by a valid E-Way except the Part B was not having correct vehicle No. HP32A3097, the vehicle no. was written as HP 32A1597 in Part-B. The appellant has followed all the conditions and nothing adverse is available on the record that the appellant wanted to evade any tax during the movement of goods.

A.2 The departments contention that there is mandatory requirement of filing all details accurately in part — B of the E-way Bill is not correct, as minor penalty can be imposed only if there is any minor mistake in Part B, and it is not be seen in oblivion, other aspects of the E-Way Bill are also to be looked upon.

A.3 The Part A of the E-Way bill has been properly filed depicting the HNS, Quantity, Description of goods along with Price of Goods and the amount of Tax charged in terms of the movement of goods from one place to another both belonging to the appellant.

A.4 The appellant has made all the entries of the above said transaction in its books of accounts and the tax and supply has been properly accounted for. Further, the record of Part A of E-way Bill generated by the appellant is available on the GST portal. Given this the intention to evade tax could not be attributed to the appellant. Therefore the penalty should be iinposed on the Appellant.

A.5 The Rule of the CGST Rules, 2017 provides the procedure for movement of the Goods. The relevant extract of Rule 138 of the CGST Rules, 2017 is reproduced as under :-

138. Information to be furnished prior to commencement of movement of goods and generation of e-way bill.-

(1) Every registered person who causes movement of goods of consignment value exceeding fifty thousand rupees—

(i) in relation to a supply; or

(ii) for reasons other than supply; or

(iii) due to inward supply from an unregistered person, shall, before commencement of such movement, furnish information relating to the said goods as specified in Part A of FORM GST EWB-01,electronically, on the common portal along with such other information as may be required on the common portal.

Provided also that where goods are sent by a principal located in one State or Union territory to a job worker located in any other State or Union territory, the e-way bill shall be generated either by the principal or the job worker, if registered, irrespective of the value of the consignment: Provided also that where handicraft goods are transported from one State or Union territory to another State or Union territory by a person who has been exempted from the requirement of obtaining registration under clauses (i) and (ii) of section 24, the e-way bill shall be generated by the said person irrespective of the value of the consignment.

[Explanation 1. — For the purposes of this rule, the expression —handicraft goods has the meaning as assigned to it in the Government of India, Ministry of Finance, notification No. 56/2018-Central Tax, dated the 23rd October, 2018, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (1), vide number G.S.R 1056 (E), dated the 23rd October, 2018 as amended from time to time.]

(2) Where the goods are transported by the registered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or a public conveyance, by road, the said person shall generate the e-way bill in FORM GST EWB-01 electronically on the common portal after furnishing information in Part B of FORM GST EWB-01.

(3)Where the e-way bill is not generated under sub-rule (2) and the goods are handed over to a transporter for transportation by road, the registered person shall furnish the information relating to the transporter on the common portal and the e-way bill shall be generated by the transporter on the said portal on the basis of the information furnished by the registered person in Part A of FORM GST EWB-01:

Provided that the registered person or, the transporter may, at his option, generate and carry the e-way bill even if the value of the consignment is less than fifty thousand rupees:

A.6 On perusal of the Rule 138 of CGST Rules it can be seen that the primary basis for movement of goods is PART A of the E-Way Bill and the utmost importance of the same cannot undermined. The PART B is just the ratification of PART A by way of addition/updation of information about the details of the vehicle only.

A.7 that is submitted that wrong filing of vehicle details in PART B was an inadvertent mistake and the does not render the whole transaction as illegal one. The harsh stance cannot be taken on it by the department.

A.8 It is well settled by the various authorities and courts that substantive benefit could not be denied for procedural mistakes in the present case of mistake of vehicle no. in Part B is an inadvertent and -cocedural mistake. The Appellant should not be penalized for the same in the absence of any intention to evade tax.

A.9 That in case of Commissioner of Central Excise v/s Addi alloys Pvt. Ltd. 2000 (122) E.L.T. 526 (tribunal), the H’ble Tribunal has held that:-

Modvat credit under Rule 57A cannot be denied on the ground that the manufacturer failed to file D-3 declaration in accordance with the directions given in the Commissionerate Trade Notice- Rules 57A of the Central Excise Rules, 1944. [para 6].

A.10 In view of above the penalty imposed on the Appellant is not sustainable and liable to be set aside in the interest of justice.

(B) CIRCULAR PROVIDES FOR THE MINOR PENALTIES IN CASE OF MINOR MISTAKES.

B.1 It is well settled principal that the revenue authorities has to ascertain implication of revenue involved in breach of any procedure of the tax statute. The tax authorities can overlook small mistake in procedure when there is lack of loss of revenue in given transaction.

B.2 That the goods in question i.e Beedi was being sent to M/s Kaka Ram Radhey Shyam Chamba, Himachal Pradesh holding GST registration number 02AANPL8404E1ZZ on a proper invoice and valid E-Way Bill except a minor mistake in the E-Way Bill generated by the appellant.

B.3 It is submitted that the GST Council had issued a circular vide No. 64/38/2018 Dt. 14th Sep., 2018 under CGST Act 2017, modifying the procedure of interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and confiscation of such goods and conveyances, as clarified in circular No. 41/15/2018- GST Dated 13.04.2018 and 49/23/2018- GST dated 21.06.2018. The relevant provisions of the circular have been enumerated as below:-

4. Whereas, section 129 of the CGST Act provides for detention and seizure of goods and cone; ances and their release on the payment of requisite tax and penalty in cases where such goods are transported in contravention of the provisions of the CGST Act or the rules made thereunder. It has been informed that proceedings under section 129 of the CGST Act are being initiated for every mistake in the documents mentioned in para 3 above. It is clarified that in case a consignment of goods is accompanied by an invoice or any other specified document and not an e-way bill, proceedings under section 129 of the CGST Act may be initiated.

5. Further, in case a consignment of goods is accompanied with an  invoice or any other specified document and also an e-way bill proceedings under section 129 of the CGST Act may not be initiated, inter alio, in the following situations:

a) Spelling mistakes in the name of the consignor or the consignee but the GST1N, wherever applicable, is correct;

b) Error in the pin-code but the address of the consignor and the consignee mentioned is correct, subject to the condition that the error in the PIN code should not have the effect of increasing the validity period of the e-way bill;

c) Error in the address of the consignee to the extent that the locality and other details of the consignee are correct;

d) Error in one or two digits of the document number mentioned in the e-way bill;

e) Error in 4 or 6 digit level of HSN where the first 2 digits of HSN are correct and the rate of tax mentioned is correct;

f) Error in one or two digits/characters of the vehicle number.

6. In case of the above situation penalty to the tune of Rs. 500/-each under section 125 of the CGST Act and the respective State GST Act should be imposed (Rs.1000/- under the IGST Act) in FORM GST DRC-07 for every consignment. A record of all such consignments where proceedings under section 129 of the CGST Act have not been invoked in view of the situations listed in paragraph 5 above shall be sent by the proper officer to his controlling officer on a weekly basis.

B.4 That the above cited provisions of the circular clearly states that in case, where there is mistake of one or two digits/characters of the vehicle number, the maximum penalty imposable is Rs. 500/- in each Act i.e. Rs. 500/- for CGST and Rs. 500/- for SGST Act.

(C) ORDER PASSED WITHOUT SHOW CAUSE NOTICE BY ADJUDICATING OFFICER ARE INVALID AS THE SAME IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE.

C.1 That as per the section 129 of the CGST Act 2017, it has been observed that the mandatory requirement of issuing show cause notice has been followed in the present case. The relevant extract of the Section 129 of the CGST/HPGST 2017 Act is as under:

Detention, seizure and release of goods and conveyances in transit.

129. (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,—

(a) on payment of the applisable tax and penalty equal to one hundred per cent. of the tax peyable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty;

(b) on payment of the applicable tax and penalty equal to the fifty per cent. of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty;

(c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods.

(2) The provisions of sub-section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances.

(3) The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c).

(4) No tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard.

(5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-setion (3) shall be deemed to be concluded.

(6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within seven days of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of section 130:

Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer.

C,2. Reliance is also place on the judgment of Hon’ble Tribunal in case of COMMISSIONER OF C.EX. & CUS., AURANGABAD VS. SIDHESHWAR SSK LTD. wherein it was held that it is not open for Department to by-pass legal requirement of issuance of SCN before conclusion of adjudication proceedings.

The Department not to find out short-cut method. The relevant extract is reproduced below.

“When the law clearly required issuance of the show cause notice before the conclusion of the adjudication proceedings, it is not open to the department to by pass such legal requirement and find out short-cut method.”

C.3 In view of above submission the order denying the refund to the Appellant without issuance of SCN is not sustainable and liable to be dropped in the interest of Justice.

C.4 Since, in the present case the impugned orders have been passed without following the procedure as defined under Section 129 of the CGST Act, 2017.

C.5 On perusal of above provisions it can be easily accredited that the on tax and Penalty imposed is totally unacceptable and both the orders of Tax as well as penalty are totally devoid of merits and, are against the principal of natural justice and shall be treated as null and void on the basis of statutory mandate.

(D) SAME TRANSACTION CANNOT BE TAXED TWICE

D.1 It is submitted that the basic purpose Behind bringing GST in to the Indian economy is to remove cascading effects, avoid double taxation double taxation and free flow of credit in the system.

D,2. It is submitted that is the present case the Appellant has already discharged IGST on the entire value of the goods supplied to the Chamba dealer and th Ld/ Adjudicating Authority despite being aware of the said fact, has proceeded to confirm the demand of CGST and HPGST, against the Appellant. As the supplier of Appellant has already discharged the CGST/HPGST on the impugned goods, the confirmation of the demand of tax penalty under CGST and HPGST leads to double taxation and is totally unjustified.

D,3. It is pertinent to mention here that the as per the provisions of Section 129, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this act or rules, the person is liable to pay applicable tax along with penalty, the relevant extract is reproduced below:

(a) on payment of applicable tax and penalty equal to one hundred percent of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two percent of the value of such goods ortwenty five thousand rupees, whichever is less, wherever the owner of gods come forward for payment of such tax and penalty.

D.4 In the present case, as the Applicable tax i.e. CGST/ HPGST already stands paid by the Supplier of the goods, the same cannot be demanded from the Appellant again stands paid by the Supplier of the foods, the same cannot be demanded from the Appellant again and therefore, the demand of CGST and HPGST confirmed by the Ld. Adjudicating Authority leads to a scenario of double taxation, which is neither the intention nor the mandate of the GST law.

D.5 That the said action of imposing the double tax on single transaction also violates the basic principles of equity enshrined in the constitution of India and at the same time devoid, the appellant of right of natural justice.

D.6 Given this the demand confirmed vide impugned order is not stainable and liable to be set aside in the interest of justice.

The appellant prayed to set aside the impugned order passed by the Ld. Assistant Commissioner of State Taxes and Excise, Chamba and has requested to pass an order of refund of tax and penalty deposited by the appellant against the said order.

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6. In the reply of the above grounds of appeal, respondent Sh Nutan Mahajan ACSTE Chamba has submitted following points:-

A.1 That on dated 01-12-2018 at 05:00 at a place namely Gate in Distt. Chamba, H.P during roadside checking, vehicle No. HP-32A-3097 was intercepted by the checking team and the Driver-cum-person in charge of the conveyance and goods, Sh. Bhoop Singh was asked to produce the documents pertaining to goods loaded in the vehicle. He produced Tax Invoice No. KBE/1073 dated 29-11-2018 for bidies/ goods amounting to Rs. 11,22,079/- and E-Way Bill. When the E-Way bill was verified for Part-B, the vehicle No. was found entered wrong as HP32A-1597. This number of vehicle (HP32A-1597) is also verified in the E-Way Bill Officer login and then it is found that this vehicle was engaged in another consignment being transported from Baggi (Distt. Mandi) to Balh (Distt. Mandi) having E-Way Bill No. 3310 6862 1194 dated:01-12-2018 time 04:03 pm

A,2. Para is denied as Rule 138 (5A) envisages as “The consignor or the recipient, who has furnished the information in Part-A of FORM GST EWB-01, or the transporter, may assign the E-Way bill number to another registered or enrolled transporter for updating the information in part-B of FORM GST EWB-01 for further movement of consignment:

Provided that once the details of the conveyance have been updated by the transporter in Part B of FORM GST EWB-01, the consignor or recipient, as the case may be, who has furnished the information in Part-A of FORM GST EWB-01 shall not be allowed to assign the E-Way bill number to another transporter.” Whereas vehicle no.( HP32A-1597) was verified in the E-Way bill Officer Login, then it was found that this vehicle was engaged in another consignment being transported from Baggi (Distt. Mandi) to Balh (Distt. Mandi) having E-Way Bill No. 3310 6862 1194 Dated: 01-12-2018 time: 04:03 pm valid up to 02-12-2018.

A,3. Para is denied as per Rule 138 (3); Explanation (2), reproduced as “The E-Way Bill shall not be valid for movement of goods by road unless the information in Part-B of FORM GST EWB-01 has been furnished except in the case of movements covered under the third proviso to sub-rule(3).” The third proviso to sub-rule(3) of Rule 138 states as “Provided also that where the goods are transported for a distance for less than ten kilometers within the State or Union territory from the place of business of the consignor to the place of business of the transporter for further transportation, the supplier or the recipient, or as the case may be, the transporter may not furnish the details of conveyance in Part B of FORM GST EWB-01.”

A,4. Para is denied as sub rule (9) of Rule 138 reproduced as “Where an E-Way bill has been generated under this rule, but goods are either not transported or are not transported or not transported as per the details furnished in the E-Way bill, there E-Way bill may be cancelled electronically on the common portal, within 24 hours of generation of the E-Way bill:

Provided that an E-Way bill cannot be cancelled if it has been verified in transit in accordance with the provisions of rule 1386:

Provided further the unique number generated under sub-rule (1) shall be valid for 72 hours for updation of part B of FORM GST EWB-01″.

B.1 The Adjudicating Authority has rightly imposed penalty u/s 129 of the Acts ibid as there was an intention to evade the tax.

B.2 There was a deliberate attempt to evade the tax on the pretext of minor mistake and penalty has rightly been imposed.

B.3 It is pertinent to mention here that appellant firm owns a fleet of Goods carrier vehicles which are being used for transportation of goods and the Registration number wise details of these vehicles are HP-32A-1297, HP-32A-1597, HP-32A-2197, HP32A-3097 and HP-32B-1297. The last two digits of all these vehicles are ending with “97” and all other details are identical except in one case alphabet “B” is there. Such vehicles are invariably used for dispatch of outward supply of goods. To generate the E Way Bill against a different Vehicle number and carry the same bulk of consignments in other vehicles against the strength of the e-way bill generated with different vehicle details and seeking the benefit of doubt, at the pretext of clerical mistake in mentioning of vehicle No. as per provisions made in this regard vide Circular No 64/38/2018-GST Dated 14.09.2018 and thus demanding relaxation in invoking of provision of sec 129(1), has been held to be modus operandi followed by the appellant to design / fabricate the goods delivery system for supplying more than one consignment against the strength of a single e-way bill and by doing so the said firm has misled the checking team by claiming the clerical mistake in Vehicle No. e- way bill. Vide Para 5 of circular supra, in case a consignment of goods is accompanied with an invoice or any other specified document and also an e way bill, proceeding under sec 129 of the CGST Act “may” not be initiated, inter alia in following situations:

f) Error in one or two digits / characters of the vehicle number.

The use of term “may” signifies that it has left the proper Officer in using his discretion in non-invoking the provision of sec 129(1) rather it seems to be advisory in nature and therefore the said circular, does not make the Adjudication Officer, legally bound to relax the invoking of the provisions of sec 129(1).

C.1 As pointed out earlier also, the vehicle along with goods was detained after following all the procedure for interception of conveyances for inspection of goods in movement, and detention of such goods and conveyances as per Circular No. 41/15/2018-GST dated 13-04-2018. Show Cause Notice in MOV-07 was duly issued and the Appellant Taxpayer deposited the tax and penalty after receipt of orders in MOV-09 after given due opportunity of being heard. The vehicle no HP32A-1597, which was found entered in e-way bill no3010 6789 8208 dated 29-11-2018 at the time of inspection on 01-12-2018 at 5:00 PM, was engaged in another consignment being transported from Baggi (Distt. Mandi) to Balh (Distt Mandi) having eWay Bill No. 3310 6862 1194 Dated: 01/12/2018 time: 04:03 Pm and taxpayer could not forward any explanation for this anomaly.

C.2    The Show Cause Notice in MOV-07 was duly served.

C.3. The order in MOV-09 has been rightly passed by the Adjudicating Authority.

C.4 As pointed out earlier also, procedure for interception of conveyances for inspection of goods in movement, and detention of such goods and conveyances as per Circular No. 41/15/2018-GST dated 13-04-2018 has been duly followed and penalty u/s 129 of the act ibid has rightly been imposed.

C.5 The penalty orders have been passed by the Adjudicating Authority after following due procedure and after given due opportunity of being heard and are on the principal of natural justice.

D.1 Accepted.

D.2 There is an attempt on part of the Appellant Taxpayer to evade tax and therefore, penalty along with applicable tax under section 129 (1) (a) of the Act ibid has rightly been imposed by the Adjudication Authority.

D.3 The Appellant Taxpayer has quoted the ext ict of Section 129 (1) (a) and the facts of the case have already been mentioned earlier.

D.4 Since, there is an attempt on part of the Appellant Taxpayer to evade tax and therefore, penalty along with applicable tax under section 129 (1) (a) of the Act ibid has rightly been imposed by the Adjudication Authority.

D.5 As already pointed out, the taxpayer has attempted to evade the tax and therefore, applicable tax along with penalty under section 129 (1) (a) of the Act ibid has rightly been imposed by the Adjudication Authority.

D.6 The Orders are as per law and sustainable and have been passed after given due opportunity of being heard.

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7. In the view of above discussions I am of considerate opinion that the penalty imposed in the instant case under section 129 was unwarranted. GST Council vide circular No 64/38/2018 dated 14th September, 2018 and the HP circular no. 12-25/2018-19-EXN-GST-(575)-6009-6026 dtd 13th March 2019 valid from 14-09-2018 in para 5 provides that in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, proceedings under section 129 of the CGST Act may not be initiated in case of minor mistakes like error in one or two digits/characters of the vehicle number. Further Para 6 of the said circular states that in case of minor errors mentioned in Para 5, penalty to the tune of Rs. 500/- each under section 125 of the CGST Act and the respective HPSGST Act should be imposed (Rs.1000/- under the IGST Act) in FORM GST DRC-07 for every consignment. Further, the submission of Ld. respondent that the circular of CBIT dtd 14-09-2018 and the circular under the HPGST act is advisory in nature and not implementable by the proper officer is not acceptable. The said circular and the subsequent notification under the HPGST Act have to be followed and the benefit cannot be denied to the appellant for paltry errors of two digits in the vehicle number. The e-way bill has been duly generated and no mistake has been found in all other information entered in the EWB. The respondents have also not been able to prove beyond doubt nor submit any substantial evidence that the appellant was adopting the system of wrong mentioning of vehicle numbers in the EWB as their modus operandi to evade taxes.

8. Therefore, keeping in view the above stated facts the orders of ACST&E, Chamba are set-aside on the ground that the standard operating procedure mentioned in Circular No 64/38/2018 dated 14th September, 2018 and the HP circular no. 12-25/2018-19-EXN-GST-(575)-6009-6026 dtd 13th March 2019 valid from 14-09-2018 was not taken into consideration while imposing penalty in the instant case. The additional demand deposited by the appellant may be refunded and the penalty of Rs 500/- under SGST and Rs 500/- under CGST under section 125 of CGST/HPGST Act, 2017 is imposed on the taxpayer in accordance to GST Circular. The judgment in this case was reserved on 01.11.2019 which is released today.

Parties be informed accordingly.

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