TaxTMI 
TaxTMI 
2026 (9) TMI 2075
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....resulted in issuance of FORM GST ASMT-10 dated 21.12.2023. The scrutiny reflected two sets of e-way bills generated against the same respective invoices. After the first appellate order, the dispute surviving in the present appeal relates only to Invoice No. GST-125. 3. In relation to Invoice GST-125, the departmental data records the following two e-way bills: E-way Bill No. Generated on Invoice Taxable value IGST Vehicle No. 891003356098 12.04.2018, 12:51 hrs. GST-125 Rs.7,85,747 Rs.1,41,434.50 CG04JA8774 841003360544 12.04.2018, 14:14 hrs. GST-125 Rs.7,85,747 Rs.1,41,434.50 CG04JA8774 4. A show-cause notice in FORM GST DRC-01 dated 28.12.2023 was thereafter issued under Section 73 of the CGST/CGGST Act, 2017. The allegation, in substance, was generation of duplicate e-way bills against the same invoices and non-payment of tax corresponding to the additional transaction so indicated. 5. The appellant filed a reply in FORM GST DRC-06 dated 27.01.2024. The explanation offered was not a single, specific factual account of how the second e-way bill came to be generated. The reply referred, in a composite manner, to a 'cle....
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....ice no. GST-125 survives in the present appeal: Tax (IGST) Interest Penalty Total Rs.1,41,434 Rs.1,57,631 Rs.14,143 Rs.3,13,208 9. By order dated 07.09.2026, after hearing the learned Authorised Representatives, it was recorded that the respondent did not propose to file any memorandum of cross-objections and that the appellant did not require to file any rejoinder to the respondent's reply; the pleadings were accordingly treated as complete. The matter was thereafter heard finally on 18.09.2026. We have heard the learned Authorised Representatives for both sides at length and have considered the pleadings, the records of the proceedings below, the respondent's counter-statement and the notes of submissions made at the final hearing. II. PLEADINGS AND MATERIAL AT FINAL HEARING 10. The appellant has maintained that there was only one actual supply and that duplicate generation of an e-way bill, without proof of a second movement or second sale, could not by itself justify an additional tax demand. It has also relied upon the fact that the First Appellate Authority accepted its explanation in relation to Invoice GST-1399. The explanation for the....
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.... the respondent that the respondent did not propose to file any memorandum of cross-objections. The same order records that no rejoinder was required by the appellant and that the pleadings were complete. The respondent has therefore unequivocally confined its filing before this Tribunal to a reply/counter-statement and has not challenged the relief granted in relation to GST-1399. 15. In view of the respondent's express statement recorded in the order dated 07.09.2026, the relief granted by the First Appellate Authority in relation to GST-1399 is outside the controversy requiring determination in the present appeal and shall remain undisturbed. That transaction is referred to only as part of the factual background and for considering the appellant's plea regarding the treatment of its explanation. IV. ISSUES FOR DETERMINATION 16. Having regard to the record and the submissions, the questions which require determination at this stage are: * whether the original adjudication stands vitiated for failure to grant the personal hearing expressly requested under Section 75(4) and for failure to record adequate reasons as required by Section 75(6); * whether the....
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....irectly considered the mandate of Section 75(4) in Mahindra & Mahindra Ltd. v. Union of India, (2025) 137 GSTR 200. The Hon'ble Division Bench held that when an opportunity of hearing is contemplated by the statute it has to be real and comprehensive and cannot be short-circuited; the statutory mandate cannot be rendered porous by a merely formal opportunity. 23. The same jurisdictional principle is reflected in Tata Steel Ltd. v. State of Chhattisgarh, 2023 SCC OnLine Chh 4882, where the Hon'ble High Court of Chhattisgarh directed that the assessee be afforded a personal hearing in accordance with Section 75(4). 24. In the present case, no post-reply personal hearing by the original adjudicating authority is demonstrated from the record. The requirement of Section 75(4) was therefore not complied with. B. Requirement of a reasoned order 25. Section 75(6) requires the proper officer to set out in the order the relevant facts and the basis of the decision. The requirement is substantive. A statement that the taxpayer's reply is "not satisfactory", without engaging with the material explanation offered, does not by itself disclose why the defence is unacceptable or how th....
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.... 30. Section 113(1) empowers the Appellate Tribunal to confirm, modify or annul the order appealed against, or to refer the case back to the Appellate Authority, Revisional Authority or original adjudicating authority with such directions as it may think fit for fresh adjudication or decision, after taking additional evidence, if necessary. The choice of remedy must therefore be guided by the nature of the defect and the state of the factual record. 31. This is not a case in which the material facts are wholly admitted and only one inevitable legal conclusion can follow. The surviving demand turns upon the evidentiary effect of two e-way bills generated against the same invoice and vehicle; the appellant's non-specific explanation invoking clerical mistake, power failure and/or technical or system-related glitch; the relevance of non-cancellation under Rule 138(9); the discrepancy between GST-125 and GST-128 which was itself reproduced in the Order-in-Appeal; and the underlying invoice, return, books, stock and transport/movement records. 32. There are circumstances which require a clear and specific explanation from the appellant. Two separate e-way bills were generated for ....
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....sting that explanation. 36. The fact that the rule uses the expression "may be cancelled" does not make non-cancellation an irrelevant circumstance. Once duplicate generation against the same invoice is established and the taxable person asserts that one e-way bill did not pertain to any intended or actual movement, the existence of the statutory cancellation mechanism and the failure to use it are material circumstances to be weighed along with the other evidence. The precise legal and evidentiary consequence, however, must be determined from the cumulative facts rather than from non-cancellation in isolation. 37. In Anandeshwar Traders v. State of U.P., (2021) 92 GSTR 197, the Hon'ble Allahabad High Court held on the facts before it that non-cancellation of an e-way bill did not by itself create a statutory presumption that an earlier movement had actually taken place and that the allegation had to be supported by evidence. The factual matrix there involved alleged reuse of existing e-way bills and is not identical to the present case, where two independently generated e-way bills against the same invoice form part of the departmental electronic data. The adjudicating autho....
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....en the duplication came to its knowledge, and why the second e-way bill was not cancelled under Rule 138(9). It may support that explanation by producing: (a) Invoice GST-125; (b) Invoice GST-128, if such invoice exists, for explaining the earlier reference thereto; (c) the corresponding GSTR-1 and GSTR-3B; (d) relevant books/ledger and stock records; (e) LR/GR or other transport/movement records; (f) contemporaneous material, if any, concerning the alleged power failure, clerical error, technical glitch or portal difficulty; and (g) any other document directly connected with the transaction covered by the existing notice. 43. The respondent shall be at liberty to rely upon the departmental portal data and other material already forming part of the proceedings and to respond to the documents produced by the appellant. If reliance is sought to be placed upon any material adverse to the appellant which has not previously been supplied, the same shall be disclosed to the appellant and a reasonable opportunity to respond shall be afforded before it is used against the appellant. 44. If the appellant fails, without suf....