TaxTMI 
TaxTMI 
2024 (3) TMI 743
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....ssioner, State Tax, Mobile Squad, Unit-7, Ghaziabad and the order dated 04.01.2023, the petitioner has assailed the same in the writ petition. 5. The petitioner is a proprietor running under the name and style of 'M/s. J.S. Enterprises' in trading of taxable goods falling under Chapter-74 of the Goods and Service Tariff Act. 6. The petitioner is duly registered as a trader under the GST Act and has been issued a GST Identification Number i.e. 07AECPT6934N1ZU by the competent authority. 7. The petitioner received an order from one M/s. Vaishnavi Electronics, Ghaziabad for supply of Copper Clad Laminte, etc. Upon receipt of the said order the petitioner prepared an e-Invoice No.766/2022-23 dated 04.01.2023 at 10.10 a.m. The e-Way Bill bearing No.721309051066 dated 04.01.2023 was auto generated at 10.13 a.m. after the petitioner had got the aforesaid invoice registered on the common GST portal. 8. According to the petitioner, both the e-Invoice as well as e-Way Bill were provided to the vehicle driver in the digital mode. The vehicle proceeded to its destination after the goods were loaded and the driver was provided with the necessary documentation. When the vehicle was i....
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....oduce the relevant documents at the time of interception, the violation of provisions of the GST Act read with Rules was established and penalty was liable to be imposed. The impugned order thereafter imposes the aforesaid penalty in purported exercise of Section 129(1)(a) of the GST Act and penalty was imposed. 12. The petitioner carried the said order in appeal before the appellate authority by instituting an appeal under Section 107 of the GST Act. "Section 107. Appeals to Appellate Authority ........... (6) No appeal shall be filed under sub-section (1), unless the appellant has paid- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order, in relation to which the appeal has been filed: [PROVIDED that no appeal shall be filed against an order under subsection (3) of section 129, unless a sum equal to twenty-five per cent of the penalty has been paid by the appellant.] (7) Where the appellant has paid the amount under sub-section (6....
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....e forms, and hence the production of the aforesaid forms at the time of inspection is of no avail. II. The intent to evade tax is established. 19. For adjudicating the submissions made at the Bar, it would be apposite to reproduce and reflect some relevant provisions of the GST Act. The detention, seizure and release of goods is contemplated in Section 68 read with Section 129 of the GST Act which are reproduced heredunder: "Section 68 - Inspection of goods in movement (1) The Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed. (2) The details of documents required to be carried under sub-section (1) shall be validated in such manner as may be prescribed. (3) Where any conveyance referred to in sub-section (1) is intercepted by the proper officer at any place, he may require the person in charge of the said conveyance to produce the documents prescribed under the said sub-section and devices for verification, and the said person shall be liable to produce the documents and....
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.... owner of the goods fails to pay the amount of tax and penalty as provided in subsection (1) within fifteen days from the date of receipt of the copy of the order passed under sub-section (3), the good or conveyance so detained or seized shall be liable to be sold or disposed of otherwise, in such manner and within such time as may be prescribed, to recover the penalty payable under sub-section (3): Provided that the conveyance shall be released on payment by the transporter of penalty under sub-section (3) of one lakh rupees, whichever is less; Provided further that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of fifteen days may be reduced by the proper officer." 20. The documents which are required to be carried by the persons incharge of the conveyance are set out in Rule 138A (1), (2) and (3). The provisions/Rules insofar as they are relevant to the controversy are reproduced as under: "Rule 138A. Documents and devices to be carried by a person in charge of a conveyance. (1) The person in charge of a conveyance shall carry- (a) ....
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....uploading information contained therein on the Common Goods and Services Tax Electronic Portal in such manner and subject to such conditions and restrictions as may be specified in the notification. "Provided that the Commissioner may, on the recommendations of the Council, by notification, exempt a person or a class of registered persons from issuance of invoice under this sub-rule for a specified period, subject to such conditions and restrictions as may be specified in the said notification". ............... (6) The provisions of sub-rules (1) and (2) shall not apply to an invoice prepared in the manner specified in sub-rule (4)." 22. The verification of documents and responsibilities of the revenue authorities are stated in Rule 138 (b) which is reproduced as under: "Rule 138B. Verification of documents and conveyances- (1) The Commissioner or an officer empowered by him in this behalf may authorise the proper officer to intercept any conveyance to verify the e-way bill or the e-way bill number in physical form for all interState and intraState movement of goods. (2) The Commissioner shall get Radio Frequency Identificati....
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....26. From the preceding discussion, the following facts are established. I. Firstly, even as per the case of the revenue the driver of the vehicle was in possession of a digital tax invoice without signatures of the authorised signatory. The objection is misconceived, inasmuch as, the requirement of signatures is dispensed with as regards digital invoice by virtue of operation of the 5th proviso to Rule 46 of the C.G. & S.T. Rules, 2017 quoted above. II. Secondly, it is common ground between the parties that the petitioner had produced authentic tax invoice and e-Way Bill at the time of inspection of the goods. Incidentally the seizure of the goods, inspection of the e- Way Bill carrying the goods, production of requisite documents by the petitioner and the imposition of the penalty happened on the same day i.e. 04.01.2023. III. Thirdly, once the authentic documents have been produced to the satisfaction of the authorities, there was no cause for imposition of penalty and no case for admit to evade tax is made out. IV. The authenticity of the said documents is not disputed. 27. The case of the petitioner is consistent that the driver was carryi....
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.... reasonable interpretation that can be placed on the provisions referred to above. Any other interpretation would clearly violate Article 265 of the Constitution of India. Further, Section 107 of the CGST Act is widely worded and provides that any person aggrieved by any decision, or order passed under the CGST/SGST Acts or Union Territory Goods and Services Tax Act, by an adjudicating authority, may appeal to such appellate authority as may be prescribed, within three months from the date on which such decision or order is communicated to such a person. It is obvious that the learned counsel for the petitioners in these cases is correct and contenting that whether or not a payment is made under Section 129(1)(a) or security is provided under Section 129 (1) (c), the person who is the subject matter of proceedings under section 129 of the CGST Act has the right to challenge those proceedings, culminating in an order under sub-section (3) of Section 129, before the duly constituted Appellate Authority under Section 107 of that Act. The fact that the culmination of proceedings in respect of a person who seeks to make payment of Tax and Penalty under Section 129(1)(a) does not result ....