TaxTMI 
TaxTMI 
2019 (12) TMI 1089
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....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 10th Jan., 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. Th....
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....idered 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 Th....
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....s 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 FOEM 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 i....
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....nalty 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 alia, in the following situations: a) Spelling mistakes in the name of the consignor or the consignee but the GSTIN, 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....
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....licable 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 bei....
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....er and the 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 or twenty 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 A....
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....e, 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.....
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.... 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 provisions 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 no. 03010 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 e-Way Bill No. 3310 6862 1194 Dated: 01/12/2018 time: 04:03 Pm and taxpayer could n....