TaxTMI 
TaxTMI 
2023 (8) TMI 693
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....n short) and Integrated Goods & Services Tax Act, 2017 (IGST Act in short) was upheld. 2. The brief facts of the case are that the appellant is engaged in the business of transportation of goods by road and holding GSTIN 29AGSPB7424K2ZW. The appellant's consignment loaded in vehicle No. RJ-14GF-8592 was intercepted and detained by Sh. Rajbir Mahant, Asstt. Excise & Taxation Officer (Enforcement)-cum-Proper Officer of State Tax, Gurugram (North) on dated 20.05.2018 at 11.10 P.M. at Gurugram under Section 68 (3) of the CGST Act, 2017 read with Section 68 (3) of the HGST Act, 2017 and Section 20 of the IGST Act by issuing seizure memo No. 0095 Sr. No. 47 (Annexure P-18). The vehicle was carrying goods of mixed scrap i.e. copper, aluminium and bead scrap. On demand, the driver-cum-person incharge of the goods produced Invoice Nos. 32, 33, 34, 35 and e-way bill Nos. 531030092131 and 561030091616 dated 26.04.2018 issued by M/s Hari Om Enterprises, Krishnagiri (Tamilnadu) GSTIN-33GHWPS3181R1Z3 alongwith GR No. 164, 165, 166, 167 dated 26.04.2018 issued by M/s Bright Road Logistics, Salem, showing description of goods mixed metal scrap i.e. copper, aluminium and bead scrap. 2.1 The p....
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....ding the allegations of break down of the vehicle. The Proper Officer observed that an attempt to evade the tax was made. 4.1 The Proper Officer while passing the order dated 12.06.2018 (Annexure P-24) under Section 130 of the GST Act, 2017 observed that driver-cum-person incharge of the vehicle produced old documents dated 26.04.2018 showing transaction Tamil Nadu to Delhi, whereas, the driver stated that he has loaded the goods in question from Bengaluru, Karnataka on 14.05.2018. It was also observed that vide order dated 29.05.2018, the applicable tax and penalty were demanded. However, neither the owner of the goods nor the person incharge of the transport came forward to make the payment of the said amount. Therefore, notice was issued on 06.06.2018 proposing to confiscate the goods. The reply filed by the petitioner was considered while passing the order for payment of tax, penalty and fine in lieu of confiscation of goods and conveyance and further confiscating the goods and conveyance of goods, payment of the said amount. 5. The appellate authority considered the preliminary objections raised by the counsel for the appellant regarding the competency of the Haryana Sta....
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....r HGST Act, 2017 are also empowered to enforce the CGST Act, 2017. By virtue of Section 20(xv) of the IGST Act, 2017, the provisions of the CGST Act, 2017 apply in respect of matters covered by the IGST Act, 2017 on the subject of inspection, search, seizure and arrest. Chapter XIV of the CGST Act, 2017 deals with inspection, search, seizure and arrest. Section 67 of the CGST Act, 2017 deals with the power of inspection, search and seizure, and Section 68 of the CGST Act, 2017 deals with inspection of goods in movement. In this view of the matter, I am of the considered opinion that cross-empowerment under Section 4 of the IGST Act, 2017 and Section 6 of the CGST Act 2017 means that State Authorities empowered under the HGST Act, 2017 can also enforce the provisions of the CGST Act, 2017 or IGST Act, 2017. My viewpoint finds support from the judicial pronouncements of Hon'ble High Court of Madhya Pradesh in the case of M/s Advantage India Logistics Pvt. Ltd. Vs. The Union of India and others dated 23.08.2018 in Writ Petition No. 16266 of 2018 reported as (2018) 58 GSTR 247 (MP), and Hon'ble Allahabad High Court in the case of M/s Satyondre Goods Transport ....
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....whereby, the Hon'ble Apex Court observed that since the proceedings are still pending before High Court, therefore, the SLP was entertained and the matter was required to be listed at an early date. 8. We have heard the counsel for the parties. 9. Learned counsel for the petitioner submitted that on 26.04.2018, the petitioner booked a consignment mixed scrap, weighing approximately 15,500 kg from Salem, located in the State of Tamil Nadu, to be delivered to GST dealer(s) of Delhi and for the said purpose, he hired the vehicles of respondent No. 7-M/s Jupiter Express Carriers Private Limited. The goods were loaded from the State of Tamil Nadu on 26.04.2018 for inter-State transaction and all the documents prescribed under Section 68 of the GST Act, 2017/IGST Act, 2017 were carried. The vehicle reached at Bangalore on the same day. The said truck bearing No. RJ-14-GF-8592 owned by respondent No. 7 got another tender for urgent delivery of coconuts as such, the said truck loaded the coconuts from KR Pet at Bangalore on 27.04.2018 and reached Delhi on 30.04.2018. On 01.05.2018, some parcels alongwith other goods were transported from Delhi to Bangalore in the same truck. The said....
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.... and was further authorized to pass an order under Section 129 and 130 of GST Act, 2017 read with provisions of IGST Act, 2017. 2. Whether the impugned order dated 26.11.2018 (Annexure P-1) is liable to be quashed. Question No. 1 12. The appellate authority while passing the impugned order (Annexure P-1) has dealt with a preliminary objection by discussing the history of new direct taxation regime including the applicability of IGST Act, 2017 for inter-State trade and commerce and held that in view of the provisions of Section 4 of the IGST Act, 2017 and Section 6 of the GST Act, 2017, the State authorities are empowered under the HGST Act, 2017 and they can also enforce the provisions of the CGST Act, 2017 and IGST Act, 2017. 13. In the written statement, the respondents have taken a specific stand in a reply to para Nos. 32 (xvi) and (xvii) that AETO (Enf.)-cum- Proper Officer of State Tax is duly empowered to check the goods and vehicle in inter-State transactions as per the provisions of Section 6 (1) of the CGST Act, 2017 and as per powers delegated under Section 4 of the IGST Act, 2017. It has also been submitted in the written statement that cross-empowerme....
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...., search, seizure and arrest; (xvi) demands and recovery; (xvii) liability to pay in certain cases; (xviii) advance ruling; (xix) appeals and revision; (xx) presumption as to documents; (xxi) offences and penalties; (xxii) job work; (xxiii) electronic commerce; (xxiv) transitional provisions; and (xxv) miscellaneous provisions including the provisions relating to the imposition of interest and penalty, shall, mutatis mutandis, apply, so far as may be, in relation to integrated tax as they apply in relation to central tax as if they are enacted under this Act. Provided that in the case of tax deducted at source, the deductor shall deduct tax at the rate of two percent from the payment made or credited to the supplier. Provided further that in the case of tax collected at source, the operator shall collect tax at such rate not exceeding two percent, as may be notified on the recommendations of the Council, of the net value of taxable supplies. Provided also that for the purposes of this Act, the value of a supply shall include any taxes, duties, cesses, fees and charge....
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....said Act by a Proper Officer. As per entry of Sr. No.51, 52 and 53 of the said order, the Asstt. Excise and Taxation Officer of State Tax has been assigned the functions to be performed under Section 129 (1) and (3); 129 (6); and Section 130 of the Haryana Goods and Services Tax Act, 2017. Section 129 and 130 of the said Act is having the similar provisions as under the said sections of IGST Act, 2017. 21. As such, in view of the enabling provisions of Sections 20 and Section 4 of the IGST Act; as well as the order dated 07.12.2017 (Annexure P-46) passed by the Excise & Taxation Commissioner, Haryana, assigning the functions to the Proper Officer under the Haryana Goods & Services Tax Act, 2017, we are of the considered opinion that the Asstt. Excise and Taxation Officer of State Tax is competent and authorized to exercise the powers under Section 129 and 130 of the IGST Act, 2017. 22. As such the first point for determination is accordingly, answered that the Asstt. Excise & Taxation Officer of State Tax was authorized to Act as a Proper Officer and was having the authority to act under Section 129 and 130 of the IGST Act. The decision of the appellate authority in this rega....
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....ed that the goods were not accompanied with genuine and proper documents and these were rightly confiscated on finding the aforesaid discrepancies. 25. The appellate authority while passing the impugned order dated 22.10.2018 (Annexure P-1) has considered the reasons recorded by the Proper Officer and the enquiry conducted by the Proper Officer while passing the order dated 12.06.2018 (Annexure P-34) and concluded that it is a case of reuse of documents with a mala-fide intention to evade the legitimate due tax to the Government of Coffers. 26. Before appreciating the factual aspects concluded by the Proper Officer and upheld by the appellate authority, some of the pros & cons under the GST Act, 2017 and IGST Act, 2017 are required to be considered which have been dealt with by a Coordinate Bench of this Court in CWP-18392-2021 titled as M/s Shiv Enterprises Vs. State of Punjab and others decided on 04.02.2022 and the same are reproduced as under:- '14. Enactment of CGST Act 2017 has marked arrival of new tax regime. The 2017 Act is said to be an Act to make provision for levy and collection of tax on inter-state supply of goods and services or both by the Central Go....
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.... under Section 2(62). Section 16, Sections 41, 42 and Section 43A provide for eligibility and conditions for taking input tax credit, claim of input tax credit and provisional acceptance thereof, matching reversal and reclaim of input tax credit and procedure for furnishing return and availing input tax credit respectively. Thus, input tax credit to be claimed by registered person not only depends upon eligibility conditions, but also is subject to close scrutiny in form of matching, reversal etc. and furnishing returns. At the time of supply, the person receiving inward supply pays value of such supply which includes GST. As per Section 12 of 2017 Act, the liability to pay tax on goods shall arise at the time of supply. The person receiving inward supply discharges the incidence of GST and becomes eligible to claim credit of the input tax paid. But his claim is subject to adjudication. 17. Section 31 provides that a registered person supplying taxable goods shall, before or at the time of removal of goods for supply to the recipient, where the supply involves movement of goods, issue a tax invoice showing the description, quantity and value of goods, the tax charged there....
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....onveyance is required to carry the invoice or bill of supply or delivery challan, as the case may be and in case of transportation of goods by road, he is also required to carry copy of 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. Thus, as per Section 68 of the 2017 Act read with Rules 138 to 138D of the 2017 Rules, a person carrying consignment of goods in conveyance by road is required to carry invoice or bill of supply or delivery challan and a copy of e-way bill in physical form or electronic form. These documents are required to be produced when the goods are intercepted by Proper Officer.' 27. Rule 138 of the CGST Act, 2017 provides that every registered person who causes movement of goods and consignment value of exceeding Rs.50,000/- shall before commencement of said movement, generate e-way bill by way of furnishing information relating to the said goods as specified in Part A of FORM GST EWB-01, electronically, on the common portal alongwith such other information as may be required on the common portal. Th....
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.... alleged that the same vehicle i.e. RJ-14GF-8592 has transported the coconuts from Bangalore to Delhi from 27.04.2018 to 30.04.2018. It transported some parcels Delhi to Bangalore from 01.05.2018 to 05.05.2018 and again transported the goods from Bangalore to Delhi and then from Delhi to Bangalore w.e.f. 06.05.2018 to 10.05.2018, 10.05.2018 to 14.05.2018, respectively and ultimately, the goods of the petitioner i.e. mixed scrap was loaded from Bangalore on 14.05.2018 for delivery to Delhi when it was intercepted in Gurugram on 20.05.2018. In this regard, the petitioner had relied upon some invoices. We have perused the said annexures. Annexures P-2 to P-4 are copies of the invoice dated 27.04.2018. Annexure P-6 is also copy of a cash bill dated 06.05.2018. None of these documents is an e-way bill which would ensure that the information was uploaded on the central portal. In pursuance of the aforesaid rule, e-way bill was not generated for any of these alleged transactions despite the fact that the value of the supply alleged in Annexure P-3 is more than Rs. 50,000/-. 30. Since, the documents relied upon by the petitioner in support of his contention that the scrap was unloaded a....
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....e 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 applicable tax and penalty equal to one hundred per cent of the tax payable 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 det....
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....penalty under section 122. (2) Whenever confiscation of any goods or conveyance is authorised by this Act, the officer adjudging it shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the said officer thinks fit: Provided that such fine leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon: Provided further that the aggregate of such fine and penalty leviable shall not be less than the amount of penalty leviable under sub-section (1) of section 129: Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. (3) Where any fine in lieu of confiscation of goods or conveyance is imposed under sub-section (2), the owner of such goods or conveyance or the person referred to in sub-section (1), shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance. (4) No order for confiscat....