2024 (3) TMI 219

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....nd Services Tax Act, 2017 (hereinafter referred to as 'the Act'). On March 10, 2019, the petitioner had sold a consignment of TMT Bars (sariya) to one M/s Sahai & sons, Orai vide Tax Invoice No. 167. A vehicle bearing No. MP 16H 1584 was mentioned in the tax invoice for the transportation of the goods. b. On the same day i.e. March 10, 2019 at 01:11 P.M., the respondent No.2 intercepted the vehicle at Galla Mandi, Orai and subsequently at 03:59 P.M. issued an order for physical verification/inspection of the conveyance, goods & documents under section 68(3) of the Act on the ground that neither e-way bill nor any other document such as tax invoice, bill of supply, challan or bill of entry related to the goods in transit were produced before him at the time of interception. c. After the issuance of order for physical verification/inspection of the conveyance, goods & documents, the documents related to the goods such as Tax Invoice and the e-way bill were produced before the respondent No. 2. The said e-way bill was not accepted by the respondent No. 2 because it was generated after the interception took place. As per the respondent authorities, the aforementioned ....

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....had downloaded the e-way bill on March 10, 2019 at 02:42 P.M. and the respondent No. 2 had issued the interception memo on the same day at 03:59 pm. In this situation, the e-way bill had been generated prior to the issuance of interception memo and no intention to evade tax can be inferred in view of this fact. d. Section 129 of the Act is applicable only when the consignment of goods are in transit and it does not apply to the present case since the vehicle was parked and was not in transit when it was intercepted by the respondent no. 2. e. The petitioner had submitted all the documents relating to the consignment of goods before the authorities much prior to the passing of seizure order. f. Since the petitioner had already deposited the tax on the consignment of seized goods and the relevant transaction had also been disclosed in the returns furnished by him, hence there was no intention to evade tax on his part and thus the impugned orders passed by the authorities are liable to be set aside. g. It is a settled law that if the e-way bill is downloaded before seizure and tax is also charged then seizure and penalty are not justified. This posi....

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....e goods loaded in the vehicle. In this way, the goods were being transported without valid documents. c. The petitioner has submitted a vague reply of non availability of computer operator. In this regard, it is submitted that the generation of e-way bill is required as mentioned in Rule 138 of the Rules and therefore, it was obligatory on the petitioner to have generated the e-way bill which was not done and therefore, the provisions were not followed by the petitioner. It is further submitted that the petitioner has generated the e-way bill on 10.03.2019 at 02:42 P.M., which was actually after the time of interception of the vehicle. d. As per language of Section 129 of the Act, the seizure and release of the goods depends on the infringement of the provisions and the word mens rea has not been specifically mentioned. The revenue has relied upon the judgment given by this Court in M/s Hawkins Cookers Limited Vs State of U.P. and Others (Writ Tax No. 739 of 2020 decided on 12.02.2024) where it has been held that "Now, such an intention to evade tax may be presumed by the department in cases where there is wholesome disregard of the Rules. For example, in the even....

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.... 9. This court in case of M/s Akhilesh Traders V. State of U.P. and 3 others (Writ Tax no. 1109 of 2019 decided on February 20, 2024) has held that in cases where the goods are not accompanied by the invoice and e-way bill, a presumption may be raised that there is an intention to evade tax. The relevant paragraphs of the aforesaid judgment read as under: "7. This Court in umpteen cases where penalties were being imposed under Section 129 of the Act though held that an intention to evade tax should be present, however, in the event the goods are not accompanied by the invoice or the e-way bill, a presumption may be raised that there is an intention to evade tax. Such a presumption of evasion of tax then becomes rebuttable by the materials to be provided by the owner/transporter of the goods. 8. In the present case, one comes to an inexorable conclusion that the petitioner has not been able to rebut the presumption of evasion of taxes, as he has not been able to explain the absence of invoice and the E-Way Bill. Production of these documents subsequent to the interception cannot absolve the petitioner from the liability of penalty as the very purpose of imposing ....