TaxTMI 
TaxTMI 
2020 (10) TMI 1128
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.... 9-11-2018 passed by the Asst. Commissioner State Taxes & Excise (ACST & E)-cum-Proper Officer, Chamba vide which an additional demand of Rs. 16,28,237/- was created against the appellant under Rule 138 of HPGST & CGST Rules, 2017. 3. Brief facts of the case : (i) The dealer is trader and trading in Earth Moving machinery/goods having various offices across North India in the State of Himachal Pradesh, Punjab and part of Haryana. The dealer procures materials from various locations across India and sales to the various buyers differently located and at times the machinery is shipped to different place than the billed to address. It means the Billed to and Shipped to address can be different and the same was the case at present in Appeal. (ii) That the Firm M/s. Integrated Constructive Solutions, Zirak Pur, Mohali GST No. 03AADFI9072M1Z4 has purchased the materials from M/s. Hyundai Construction Equipments Private Limited, Pune GST No. 27AABCH8756QIZQ vide proper Invoice and E-way Bill No. 231053571933, dated 27-10-2018 clearly mentioning the machine no. on the Invoice as these type of heavy machines are sold ....
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....erefore not possible to cancel the E-way Bill to evade tax and the transaction in any case was reported and therefore tax cannot be saved/evaded as alleged and under the circumstances no tax/penalty can be levied reliance can be placed on Tvl. R.K. Motors v. State Tax Officer, (Madras High Court) • That the small and technical error does not warrant penalty (v) That the only reason for the detaining of the goods as per the GST-07 is "the vehicle at the time of checking is PB10CT6249 whereas in E-way Bill No. 331061097912, dated 1-11-2018 the Vehicle No. is PB35Q8464. Moreover, no documents regarding name of transporter in e-way bill Inter-State logistics has been produced by the person in-charge of the goods" That there are two parts of the allegation in the above para • Vehicle no. was not what was mentioned on the E-way • Document of inter-State logistics was not produced. • That the allegation of the Inspecting officials is not correct as the E-way Bill No. 331061097912, dated 1-11-2018 was available. It is also a fact that the vehicle was intercepted on 6-11-2018 and ....
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....ents at the time of interception of the vehicle. • the E-way Bill/Invoice with full tax was generated much before the interception where the vehicle no., machine no. etc. was same. • that there was no intention of tax evasion as the full tax was paid. • that the E-way Bill generated on 1-11-2018, not possible to be cancelled and the same could not have been misused by any means for tax evasion • that both the parties were registered and having GSTIN no. and even otherwise. • the goods were on its way to the destination and at no other places. • that these types of machine/equipments are sold under warranty with specific equipments no. and therefore can never be sold with intended tax evasion It is very hard to believe that when the person has generated Invoice/E-way Bill with correct address machine no. which are sold with warranty etc. will intentionally mention/fills wrong Vehicle no. That it is also unimaginable that how this minor error will help in tax evasion as alleged If we sum up it is established that : • that the Circular No. 64/38/2018-....
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....ht to have directed the driver of the vehicle to move back towards Virudhunagar. Instead adopting such a procedure, the respondent had chosen to be harsh and vindictive. As rightly pointed out by the Learned Counsel appearing for the writ petitioner, the goods in question are two wheelers. They cannot be sold without proper registration with the Motor Vehicle Authorities. That would require proper documentation. Therefore, in a case of this nature, the writ petitioner could not have evaded his statutory obligations in any manner. This aspect of the matter ought to have been taken note by the respondent." Similarity with our case • that we cannot sell the material without warranty and registration • Goods were still in the vehicle • there is no attempt to evade tax as full tax was charged and paid. • that the appellant is a dealer of Hyundai a big giant where the sale cannot happen without-Invoice and after sale warrant is also given Sabitha Riyaz v. Union of India, [2018 (19) G.S.T.L. 393 (Ker.)] (Kerala High Court) where it has been held "Indeed, the Central Board of Indirect Taxes and Customs ....
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....under this Act shall depend on the facts and circumstances of each case and shall be commensurate with the degree and severity of the breach. The section in the beginning speaks that no penalty shall be levied for "any omission or mistake in documentation which is easily rectifiable and made without fraudulent intent or gross negligence." If we see and critically analyze this with regard to the case in hand where only error is - vehicle no. whereas the address etc. is correct • the error is easily rectifiable • there is apparently no fraudulent intent as the tax has been paid in full and proper Invoice has been issued along with E-way Bill and there is no evasion of tax. It is also a fact that without any motive/gain/advantage there can be no fraudulent intent. As fraudulent intent means Fraudulent Intent :- Law and Legal Definition. A person is said to act with fraudulent intent when she/he either with a view to benefit himself/herself or with a view to mislead other makes any statement or representation which she/he knows to be false. As we see there is no benefit to the appellant si....
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....ondent : The Part-B of the 331061097912 was updated at Pathankot as the goods were loaded in Vehicle No. PB-35Q-5464. In the said EWB, there is mention of transporter as inter-State logistics GSTIN-27BSHPS6798F1ZZ (consignment note 479) but the same was not available with the driver of the vehicle at the time of checking. Shri Anil Sharma, the partner of M/s. Integrated Constructive Solutions, submitted a letter dated 6-11-2018, issued by M/s. Balaji Construction Co., Shree Balaji Trailer on 9-11-2018, which was updated in EWB by the consigner of the goods at 11:52 am on 6-11-2018 after the detection of the case. Moreover, at the time of inspection the driver produced photocopy of the Tax invoice and EWB 331061099712 and he was not having the document relating to the updation of transporter M/s. Balaji Construction Co. The validity of EWB was up to 26-11-2018 and in the EWB 331061099712, the Vehicle No. PB-35Q-8464 was updated on 5-11-2018 by the consigner and it shows shat the consignor was well conversant with the provisions of GST Act and EWB rules. As mentioned earlier, the validity of EWB was up to 26-11-2018 and the Vehicle No. PB-10CT-6249 was checked at 10:10 am which....
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....roduced E-way Bill also on which vehicle no. mentioned does not match. The appellant explained that due to break down of the Vehicle No. PB35Q-8464 the goods have been shifted to new Vehicle No. PB10CT-6249 and the updation of new vehicle in the already generated E-way Bill could not be done due to weak internet connectivity. The Ld. respondent detained the intercepted vehicle and starts proceeding under Section 129(1) of CGST/HPGST Act, 2017 and imposed a tax/penalty amounting to Rs. 16,28,23,728/. In between the appellant has also updated the part-B of E-way Bill at 11:52 a.m. dated 5-11-2018. 6. I have heard both the parties and have perused the record available of the case. It appears that there is no dispute regarding quantity of goods and further all concerns documents were placed before the proper officer. It is a fact that the E-way Bill for the material in question was generated at 05:52 pm on 1-11-2018 and further updated on 5-11-2018 at 06:38 pm in which all relevant detail were entered. Due to break down of material carrying vehicle the material were transhipped to another vehicle. The E-way Bill of the consignment which was produced before the proper officer pe....