TaxTMI 
TaxTMI 
2019 (11) TMI 711
X X X X Extracts X X X X
X X X X Extracts X X X X
....rise, who is a registered person in the State of Maharashtra under the GST Acts for supply of TMT bars and angles. Pursuant to such order, the petitioner was transporting the goods and the driver of the truck duly had with him the tax invoice as well as the transport receipt in respect of such goods. Before commencement of movement of goods, the petitioner had duly generated e-way bill in respect of the transaction on the online GST portal. The details of invoice as well as details of the buyer were duly entered in the online e-way bill. 2.1 The truck along with the goods came to be detained on the highway by the second respondent, viz., the State Tax Officer, Mobile Squad, Sagbara. The driver of the truck duly produced all documents relating to the goods including invoice, transport receipt and e-way bill. However, despite the fact that the petitioner had complied with the procedure for movement of goods as stipulated under the GST Acts, by the impugned order, the truck with the goods came to be detained/seized under section 129 of the GST Acts on the ground that the transport receipt was a photocopy and the details filled in the transport receipt were handwritten. 2.2 Subsequ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... goods, is wholly without jurisdiction, arbitrary and illegal. It was urged that the petitioner had duly complied with the procedure that is required to be followed for dispatch of goods under the GST Acts viz., the tax invoice was duly prepared prior to movement of goods; E-way bill was generated prior to commencement of movement which contained details of the goods, tax invoice as well as the buyer of goods including his registration number under the GST Acts; and the transport receipt of the transporter was also accompanying the goods; and there was absolutely no contravention of any provision of the GST Acts. 3.2 It was further submitted that insofar as the transport receipts are concerned, the petitioner has explained that it was a routine practice for the transporter to send scanned copies of the transport receipts which would then be filled and signed by the authorised representative of the transporter at the place of dispatch. However, there is no format of transport receipt prescribed under the GST Acts, and hence, the detention/seizure of the truck with the goods and subsequent demand of tax and penalty under section 129 of the GST Acts on such flimsy ground, even throu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the reasons stated in the detention order, the detention is not tenable, and that the goods in question could not have been seized. 3.6 Next, it was submitted that while the conveyance with the goods was detained on the above ground alone, in the affidavit in reply filed on behalf of the respondents, new grounds have been raised, namely, that the petitioner had not obtained GST registration for the commodities which were being transported and that the driver of one of the vehicles had given a statement that the goods were being transported from Sihor to Aurangabad. It was emphatically argued that addition of reasons by way of an affidavit is not tenable. In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851, for the proposition that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fact all the four trucks were meaning for the same recipient. It was urged that one of the four drivers seems to have erroneously mentioned the destination as Aurangabad and that such statement is uncorroborated and in fact does not even form the basis of the detention orders. It was submitted that when the petitioner approached the driver concerned for clarification, he had conveyed that the authority had simply taken his signature on his alleged statement and that he was not aware of the contents of the statement. It was submitted that this in any case, has absolutely no consequence insofar as the liability of the petitioner is concerned, inasmuch as, the petitioner had disclosed such transaction to be inter-State supplies under the Integrated Goods and Services Tax Act, 2017 and the destination of the goods will have no bearing on the tax liability of the petitioner provided that such destination is outside the State of Gujarat. Thus, there is no question of any mala fide intention on the part of the petitioner. 3.10 The learned advocate next submitted that the petitioner as well as the recipient of the goods, are registered persons under the GST Acts and the invoice as well a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... statement of the driver, it was found that the vehicle was being taken to Aurangabad from Sihor and not from Bhavnagar to Mumbai. Therefore, also, it creates strong doubt as regards the transaction in question and the e-way bill does not match with the route. It is also submitted that in the facts and circumstances, it is apparent that the petitioner has willfully contravened various provisions of the GGST / CGST Acts only with a view to evade the payment of tax. 4.1 The learned Assistant Government Pleader, accordingly, urged that the provisions of section 129 of the GGST Act/CGST Act have rightly been invoked in the present case and that the petition being devoid of merits deserves to be dismissed. 4.2 It may be pertinent to note that though the above averments with regard to the petitioner not being registered for the commodities which were being transported have been made in the affidavit-in-reply and have also been reiterated by the learned Assistant Government Pleader while making submissions before this court, the learned Assistant Government Pleader, even after taking instructions from the Instructing Officer who was present in the court room, was not in a position to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted 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 in clause (b) of sub-rule (1), where circumstances so warrant, the Commissioner may, by notification, require the person-incharge 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." 8. On a plain reading of the above rule, it is evident that the documents which are required to be kept by the person in charge of a conveyance while transporting goods are (i) the invoice or bill of supply or delivery challan, as the case may be; and (ii) a copy of the e-way bill. In the present case, admittedly when the trucks in question came to be intercepted, the concerned driver had produced the invoice as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....all record a statement of the person in charge of the conveyance in FORM GST MOV-01. In addition, the proper officer shall issue an order for physical verification/inspection of the conveyance, goods and documents in FORM GST MOV- 02, requiring the person in charge of the conveyance to station the conveyance at the place mentioned in such order and allow the inspection of the goods. The proper officer shall, within twenty four hours of the aforementioned issuance of FORM GST MOV-02, prepare a report in Part A of FORM GST EWB-03 and upload the same on the common portal. (e) Within a period of three working days from the date of issue of the order in FORM GST MOV-02, the proper officer shall conclude the inspection proceedings, either by himself or through any other proper officer authorised in this behalf. Where circumstances warrant such time to be extended, he shall obtain a written permission in FORM GST MOV-03 from the Commissioner or an officer authorized by him, for extension of time beyond three working days and a copy of the order of extension shall be served on the person in charge of the conveyance. (f) On completion of the physical verification/inspection of the con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....08 along with a security in the form of bank guarantee equal to the amount payable under clause (a) or clause (b) of sub-section (1) of section 129 of the CGST Act. The finalisation of the proceedings under section 129 of the CGST Act shall be taken up on priority by the officer concerned and the security provided may be adjusted against the demand arising from such proceedings. (j) Where any objections are filed against the proposed amount of tax and penalty payable, the proper officer shall consider such objections and thereafter, pass a speaking order in FORM GST MOV-09, quantifying the tax and penalty payable. On payment of such tax and penalty, the goods and conveyance shall be released forthwith by an order in FORM GST MOV-05. The order in FORM GST MOV-09 shall be uploaded on the common portal and the demand accruing from the order shall be added in the electronic liability register and, upon payment of the demand, such register shall be credited by either debiting the electronic cash ledger or the electronic credit ledger of the concerned person in accordance with the provisions of section 49 of the CGST Act." It may be noted that the above instructions issued by the Bo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this Court, the Department cannot be permitted to take a stand contrary to the instructions issued by the Board. (3) A show-cause notice and demand contrary to the existing circulars of the Board are ab initio bad. (4) It is not open to the Revenue to advance an argument or file an appeal contrary to the circulars." 12. Since the above decision was rendered in the context of section 37B of the Central Excise Act, reference may be made to the said section, which reads thus:- "37B. Instructions to Central Excise Officers.- The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963 ), may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board: Provided that no such orders, instructions or directions shall be issued- (a) so as to require a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns contained in the above circular dated 13" April, 2018, the proper officer, empowered to intercept and inspect a conveyance, may intercept any conveyance for verification of documents and/or inspection of goods. In the present case, since no FORM GST MOV-02 has been issued, no Part A of Form GST EWB-03 has been uploaded on the common portal, no FORM GST MOV-04 has been issued and no Part B of Form GST EWB-03 has been uploaded on the common portal, it is clear that the conveyance has been intercepted for verification of documents and not for physical verification inasmuch as, if the officer intended to undertake an inspection he was required to issue an order for physical verification/inspection of the conveyance, goods and documents in FORM GST MOV-02 and thereafter upload Part A of Form GST EWB-03 on the common portal, prepare a report in FORM GST MOV-04 and furnish the same to the petitioner and to upload the final report of the inspection in Part B of Form GST EWB-03 on the common portal. On a perusal of FORM GST MOV-01, it is abundantly clear that both the documents prescribed under rule 138A of the CGST Rules, viz. the invoice and the e-way bill, were produced by the person ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older." 20. Thus, it is not permissible for the respondents to try to supplement the grounds set out in the order under section 129(1) of the CGST Act in the affidavit-in-reply filed on their behalf. Nonetheless for the purpose of clarifying the legal position, the said grounds may also be dealt with. 21. Insofar as the second ground based on a subsequent socalled statement of driver of one of the conveyances bearing No.GJ-04-AT-9302 is concerned, it may be noted that such statement is said to have been recorded on 2.4.2019, wherein the driver has stated that he had loaded the goods at Sihor in Bhavnagar and was to unload them at Aurangabad. It may ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation for registration as such Input Service Distributor. (2) (a) The Permanent Account Number shall be validated online by the common portal from the database maintained by the Central Board of Direct Taxes. (b) The mobile number declared under sub-rule (1) shall be verified through a one-time password sent to the said mobile number; and (c) The e-mail address declared under sub-rule (1) shall be verified through a separate one-time password sent to the said e-mail address. (3) On successful verification of the Permanent Account Number, mobile number and e-mail address, a temporary reference number shall be generated and communicated to the applicant on the said mobile number and e-mail address. (4) Using the reference number generated under sub-rule (3), the applicant shall electronically submit an application in Part B of FORM GST REG-01, duly signed or verified through electronic verification code, along with the documents specified in the said Form at the common portal, either directly or through a Facilitation Centre notified by the Commissioner. (5) On receipt of an application under sub-rule (4), an acknowledgement shall be issued electronically to the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....travened by the petitioner by transporting goods other than those specified in the registration form. 25. Besides, the petitioner has immediately thereafter, amended the registration and specified the goods in question. It may also be noted that rule 19 of the CGST Rules which provides for amendment of registration requires verification at the end of the proper officer in case of change in the legal name of business, change in address of the principal place of business or any additional place(s) of business or addition/deletion or retirement of partners or directors, Karta, Managing Committee, Board of Trustees, Chief Executive Officer or equivalent, responsible for the day to day affairs of the business, which does not warrant cancellation of registration under section 29. However, insofar as any change relating to any particulars other than those specified in clause (a) of the proviso to sub-rule (1) of rule 19 is concerned, the certificate of registration shall stand amended upon submission of the application in FORM GST REG-14 on the common portal. 26. FORM GST REG-14 is the form prescribed under rule 19(1) of the CGST Rules and provides the format for application for amend....