TaxTMI 
TaxTMI 
2022 (9) TMI 210
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....t conveyors, pipe conveyors and in-plant conveyors. The petitioner is having registered office at Kolkata, West Bengal, and they are registered under the provisions of G.S.T. ITD Cementation India Private Limited was awarded an EPC Contract, dated 13.02.2018, by the Tamil Nadu Generation and Distribution Corporation Ltd. [TANGEDCO], for establishment of captive coal jetty with unloading facility and pipe conveyor system for their thermal project at Udangudi, Thoothukudi District. Subsequent to the same, ITD Cementation India Limited entered into a back to back EPC contract with the petitioner for supply of jetty and pipe conveyor system together with allied electrical, instrumentation and control works. 3.The petitioner Company was issued with the letter of indent by ITD Cementation India Limited. The petitioner opened a site office within the radius of 1.5 Kms. from the work site of TANGEDCO and obtained GST Registration No.33AABCO7599L1ZT, for the purpose of stock transferring of certain machineries, equipments and other materials required for execution of the contract from the premises of the petitioner at West Bengal. The site office of the petitioner is not involved in any ....
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....sioner. The details of invoice number, 'Bill to' address and ship to address are as follows:- W.P.(MD)No.19395/2022:- Document Reference Bill to Address Ship to Address Other details Invoice No. 2220000509, dated 26.07.2022 M/s.Macmet Engineering Ltd., Macmet House, 10B, O.C.Ganguly Sarani, Kolkatta - 700 020. Macmet Engineering Ltd., C/o.TANGEDCO, 1st Floor, Ponpalani Villa, Kurinji Nagar. LOI of ITD, dated 28.02.2019, mentioned in the invoice. The purchase order reference number of petitioner also mentioned in the invoice. E-way bill No. 8512 4192 4431, dated 26.07.2022 M/s.Macmet Engineering Ltd., West Bengal. Door No.1/363-15, No.17, 1st Ward, Kurinijinagar, Veerapandiapattinam, Tiruchendur. Place of delivery is shown as Veerapandiapattinam, Tiruchendur. W.P.(MD)No.19396/2022:- Document Reference Bill to Address Ship to Address Other details Invoice No. 2220000502, dated 25.07.2022 M/s.Macmet Engineering Ltd., Macmet House, 10B, O.C.Ganguly Sarani, Kolkatta - 700 020. Macmet Engineering Ltd., C/o.TANGEDCO, 1^st Floor, Ponpalani Villa, Kurinji Nagar. LOI of ITD, dated 28.02.2019, mentioned in t....
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....gar, Veerapandiapattinam, Tiruchendur. Place of delivery is shown as Veerapandiapattinam, Tiruchendur. 5.Five vehicles were intercepted by the State Tax Officer (Int.) Roving Squad (Addl.), Madurai, on 02.08.2022 at 03.45 pm. at Madurai - Tirunelveli Bye-pass, near Thirumangalam, Madurai. The second respondent detained the vehicle under Section 68(3) of the CGST Act read with Section 129(1) of the CGST Act and Section 20 of the IGST Act read with Section 68(3) of the CGST Act. Following the same, show cause notice dated 04.08.2022 in Form MOV 07 issued on the allegation that the vehicles carried consignments under 'Bill to - Ship to' concept, but the drivers were not in possession of invoices to support transport to 'Bill to' address in Tamil Nadu. The notice also proposed to impose penalty under Section 129(1)(b) of the CGST Act. 6.The petitioner submitted reply to the show cause notice giving the background facts and also clarified that the goods were moving from West Bengal to TANGEDCO site and are sold to ITD Cementation India Limited. They admit that there has been error on the part of their supplier M/s.Phoenix Conveyor Belt India Private Limited, in ....
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.... State of Tamil Nadu based on the invoices raised by Phoenix Conveyor Belt India Private Limited and e-way bills generated based on the said invoices. 9.Further, referring to Rule 138-A of the CGST Rules, the petitioner submitted that the invoice or bill of supply or delivery challan, as the case may be, and a copy of the e-way bill in physical form or the e-way bill number in electronic form or mapped to a Radio Frequency Identification Device embedded on to the conveyance as notified by the Commissioner to be carried on by the person in-charge of conveyance of goods. 10.In this case, the conveyance of the materials was initiated by virtue of the invoice issued by Phoenix Conveyor Belt India Private Limited and accordingly, e-way bill was also generated by them. The vehicles detained by the second respondent carried the documents and e-way bill generated by Phoenix Conveyor Belt India Private Limited, where the Ship To address was correctly mentioned by them. Only mistake happened is in respect of mentioning the name of Consignee in the e-way bill, which shall be on account of ITD Cementation India Limited, instead of the petitioner Company. However, Ship To address was corr....
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....rder of the petitioner issued to Phoenix Conveyor Belt India (P) Ltd., had been produced, wherein it is clearly stated that ITD Cementation India Limited, is the place where the goods to be shipped. Further, joint Inspection Report of pipe conveyor belt for Udangudi Coal Jetty Project, issued by the TANGEDCO, M/s.ITD Cementation India Limited and the petitioner Company had been annexed. Phoenix Conveyor Belt India (P) Limited, in the tax invoice, has mentioned the receiver as Macmet Engineering Ltd., Kolkata [petitioner's head office], and in the consignee (shipped to) name column, it has been wrongly mentioned as 'Macment Engineering Ltd., [the petitioner herein] C/o.TANGEDCO, 1/363-15, No.07, 1st Ward, Kurinjinagar, Veerapandiapattinam, Tiruchendur, whereas, the name of the consignee to be mentioned as ITD Cementation India Limited, Tiruchendur Taluk, Thoothukudi District, however, the place of shipment is clearly mentioned as TANGEDCO. This is the only mistake committed and all other particulars are proper. Taking a comprehensive view, looking at all the documents, it could be seen that it is a back to back agreement. In all aspects, there is no question of value additio....
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....ry, - (a) the invoice or bill of supply or delivery challan, as the case may be; and (b) a copy of the e-way bill in physical form or the e- way bill number in electronic form or mapped to a Radio Frequency Identification Device embedded on to the conveyance in such manner as may be notified by the Commissioner. 16.As per Section 31(1) of the TNGST Act, 2017, a registered person supplying taxable goods shall, before or at the time of, - (a) removal of goods for supply to the recipient, where the supply involves movement of goods; or (b) delivery of goods or making available thereof to the recipient, in any other case, issue a tax invoice showing the description, quantity and value of goods, the tax charged thereon and such other particulars as may be prescribed. But, in the movement of goods, above facts were not followed. Finding violation of the provisions of the TNGST Act, the movement of the goods was detained. Form GST MOV 06 was served on the persons in charge of the conveyance on 02.08.2022 and personal hearing was given to the petitioner. The petitioner's authorized representative was heard, documents produced by them were perused and thereafter, finding that the tra....
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....yor India Private Limited, West Bengal, to the work site in 34 reels. 18.Further, the joint inspection was conducted by TANGEDCO, ITD Cementation India Ltd., and the petitioner between 20.06.2022 and 28.06.2022. As per the invoice, the purchase order is dated 06.07.2022. Further, as per Rule 138(A) of the CGST Rules, 2017, the person in charge of conveyance shall carry the invoice or bill of supply or delivery challan, as the case may be, and a copy of the e-way bill in physical form or the e-way bill number in electronic form or mapped to a Radio Frequency Identification Device embedded on to the conveyance in such manner as may be noticed by the Commissioner. As per the Press Release, dated 23.04.2018, it was clarified that if e-way bill raised by the first supplier namely, M/s.Phoenix Belt Conveyor India Private Limited, the 'Bill To' address shall be that of the first buyer namely, the petitioner herein, the Ship To address shall be that of the end buyer. The invoice reference in the e-way bill shall be that of the first supplier namely, M/s.Phoenix Belt Conveyor India Private Limited. 19.The petitioner having accepted the error and gave explanation that the error....
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....the work at TANGEDCO. TANGEDCO is in the process of establishing of 2 x 660 MW Super Critical Thermal Power Project at Udangudi, Thoothukudi District. For establishment of captive coal jetty with unloading facility and pipe conveyor system, the petitioner was given a sub-contract. Thereafter, the petitioner placed purchase order with M/s.Phoenix Conveyor Belt India Private Limited. The pipe conveyor belts have been transported in 34 vehicles, out of which, 14 vehicles have already reached the destination namely, ITD Cementation India Limited site at TANGEDCO, Tiruchendur. 23.Five vehicles have been intercepted by the Roving Squad Officials and it was found that the transporter carried 'Bill to' address and failed to produce invoice in support of 'Ship to' address. In these cases, the materials have been transported on the basis of 'Bill to', 'Ship to' concept, for which, two supplies are involved. Accordingly, two tax invoices are to be issued. Invoice - 1 would be issued by 'B' to 'A'. Invoice -2 would be issued by 'A' to 'C', where 'A' is Consignee, B is Consignor and 'C' is recipient. 'A' ....
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....t is the only mistake committed. Thereafter, show cause notice issued. The petitioner's authorized representative appeared and clarified the doubts raised. The contract is EPC back to back basis. The main contractor is TANGEDCO. In the invoices and e-way bills generated by M/s.Phoenix Conveyor Belt India Private Limited , 'Ship to' address is correctly mentioned. The only mistake is that the name of the consignee namely, ITD Cementation India Limited, is found missing, instead, it is mentioned the name of the petitioner Company at Tamil Nadu. 'Ship to' address is correctly mentioned in the invoices. Charging IGST for supply of goods, the Commercial Tax Department shall augment revenue to the Government and there is no revenue loss for the State of Tamil Nadu. Further, the petitioner had produced copy of the invoices issued by them upon ITD Cementation India Limited for the aforesaid vehicles. In the invoices, uploading of particulars in the G.S.T. Portal and all other particulars are found. There is no evasion of tax neither by M/s.Phoenix Conveyor Belt India Private Limited nor by the petitioner. The mistake can be rectified and there is no evasion of payment o....
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.... that the detention orders passed by the second respondent are liable to be quashed. The petitioner may be directed to execute a bond for the demand/penalty. 29.Further, in similar circumstances, this Court in the case of Jeyyam Global Foods Pvt. Ltd. Vs. Union of India [2019 (21) GSTL 465 (Mad.)], had held that if there is bona fide dispute, it is only the jurisdictional assessing officer to decide the issue and it is not by the Roving Squad Officers. 30. In N.V.K.Mohamed Sulthan Rawther and sons vs. Union of India [2019 (20) G.S.T.L. 708 (Ker.), it is reiterated that the assessing authorities to adjudicate with regard to classification. In the case of Shri Venkateshvara Logistics Fleet Owners and Transport Contractors vs. Asstt. Commr. Of C.T. & C. Ex. Cus. & S.T., Vijayapur reported in 2020 (41) G.S.T.L. 145 (Kar), though it pertains to perishable goods, the principle is that, when goods accompanied by a lawful invoice and details, the goods not to be detained. 31.Further, with regard to availing alternate remedy, the learned counsel for the petitioner placed reliance upon the decision of the Chhattisgarh High Court in the case of K.P.Sugandh Ltd. Vs. State of Chhattisg....