M/s Gati Kintetsu Express Pvt. Ltd. Versus Commissioner, Commercial Tax of MP & others

M/s Gati Kintetsu Express Pvt. Ltd. Versus Commissioner, Commercial Tax of MP & others
GST
2018 (7) TMI 1097 – MADHYA PRADESH HIGH COURT – 2018 (15) G.S.T.L. 310 (M. P.)
MADHYA PRADESH HIGH COURT – HC
Dated:- 5-7-2018
W. P. No. 12399 of 2018
GST
Shri P.K. Jaiswal & Shri S.K. Awasthi JJ.

Shri Vivek Dalal, learned counsel for the petitioner.

Ms. Archana Kher, learned Government Advocate for the respondents – State.

Per P.K. Jaiswal, J.

By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for quashment of order dated 30.05.2018 passed by the respondent No.2 – GST Appellate Authority & Joint Commissioner of State Tax, Indore and order dated 04.05.2018 passed by the respondent No.3 – Assistant Commissioner of State Tax, Indore wherein demand and penalty imposed by the respondent No.3 has been upheld and directed the petitioner to pay the amount of Rs. 1,32,13,683/-. Relevant part of the order dated 04.05.2018 passe

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of the Act provides for inspection of goods in movement, which reads as under :-

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 to 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 devices and also allow the inspection of goods. From perusal of the aforesaid provision, it is clear that the government is empowered in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be

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t of goods, update the details of conveyance in the e-way bill on the common portal in Part B of Form GST EWB-01.

7. Annexure-P/6 is the e-way bill. The details as mentioned in paras-2, 3, 4 & 5 are relevant, which reads as under :-

2. Address Details

From

GSTIN : 27AAE DA945 6D1ZM SAVA HEATHCARE LIMITED CFA MIRCOPARK LOGISTICS1ST FLOOR GATE NO.1232 WADKI, MAHARASHTRA-412308

GSTIN :D9CFE PS825 3Q12F M/S ANNAPURNA PHARMA DAYA COMPLEX OPP. SHRI TALKIES BYPASS ROAD UTTAR PRADESH -282003

3. Goods Details

HSN Code

Product Description

Quantity

Taxable Amount Rs.

Tax Rate (C+S+I+Cess)

30049086

10976.00

2226598.

00 0+0+12+0

Net Taxable Amount : 2226598.00

CGST Amount Rs. 0.00 SGST Amount Rs. 0.00

IGST Amount Rs. 267191.52 Cess Amount Rs. 0.00

4. Transportation Details

36AADCG2096A1ZY & GATI-KINTETSU EXPRESS PRIVATE

Transporter ID & Name : LIMITED

Transporter Doc. No. & Date : 229076616 & 25/04/2018

5. Vehicle

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ich contains the detials about the vehilce and transporter.

10. In the case in hand, admittedly, the petitioner has failed to give the details in Part-B of the e-way bill i.e., the details of conveyance in the e-way bill and the common portal in Part-B of Form GST EWB-01. The petitioner violated the provisions of Rule 138 and Section 68 of the Act, therefore, proceeding was initiated under Section 129 of the Act and penalty was imposed under Section 122 of the Act since he was transporting the taxable goods without the cover of documents.

11. The Department, after following due procedure, issued show cause notice and penalty case was registered. The petitioner submitted its reply by stating that due to technical error, Part-B of the e-way bill cannot be updated.

12. Learned adjudicating Authority considering the fact that the petitioner has failed in performing the statutory provisions, penalty was imposed, which was assailed by filing an appeal and the same was also dismissed

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e, it is not a minor mistake or cannot be treated as a technical error when there is an option of raising a grievance on the GST portal itself.

15. The Assessing Officer as well as the learned Authority rejected the contention that they should have imposed minor penalty. Their stand is that the minor penalty can only be in cases where the tax is upto Rs. 5,000/-.

16. In the present case, tax liability is more than lac of rupees and, therefore, they have refused to impose minor penalty and prayed for dismissal of the writ petition.

17. From the aforesaid facts of events, it is clear that while loading the goods valued at Rs. 1,12,61,419/- (including transportation charges), during Inter and Intra State of Supply of Goods or Services from Wadki, Maharashtra to Noida were accompanied by e-way bill The respondent No.2 has directed for physical verification. On physical verification, respondent No.3 has found the alleged irregularity that Part-B of the e-way bill was incomplete and

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due to inadvertence and it was a technical error therefore, the objection with regard to non-filling of the Part-B of e-way bill is nothing but a clear abuse of process of law.

21. Learned counsel for the petitioner has placed reliance on the Division Bench decision of Allahabad High Court in the case of VSL Alloys (India) Pvt. Ltd. vs. State of UP & others reported in (2018) 67 NTN DX 1 and submitted that in identical circumstances, the Division Bench found that there was no ill intention at the hands of the petitioner nor the petitioner was supposed to fill up Part-B giving all the details including the vehicle number before the goods are loaded in the vehicle, which is meant for transportation to the same to its end destination.

22. In the case of VSL Alloys (India) Pvt. Ltd. (supra), the distance was within 50 kilometeres and, therefore, the petitioner therein was not under an obligation to fill the Part-B of the e-way bill and the Division Bench of the Allahabad High Court

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