2018 (12) TMI 588 – GUJARAT HIGH COURT – TMI – Constitutional validity of rule 138(10) of the Central Goods and Services Tax Rules, 2017 / Gujarat Goods and Services Tax Rules, 2017 – validity period of the e-way bill in terms of distance to be travelled in a day – Held that:- Issue Notice returnable on 10th January, 2019. – R/SPECIAL CIVIL APPLICATION NO. 18982 of 2018 Dated:- 7-12-2018 – MS HARSHA DEVANI AND MR A. P. THAKER, JJ. For The Petitioner (s) : MR VINAY SHRAFF, ADVOCATE with MR.AVINASH PODDAR(9761), MR.VISHAL J DAVE, MR NIPUN SINGHVI(9653), MS HIRAL MEHTA, ADVOCATES ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. This petition challenges the constitutional validity of rule 138(10) of the Central Goods and Services Tax Rules, 2017 / Gujarat Goods and Services Tax Rules, 2017 as being unconstitutional and violative of Articles 14, 19(1)(g) and 301 of the Constitution of India, to the extent the said provision restricts validity period of the e-way bill in terms of
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the person concerned an opportunity of being heard. It was submitted that despite the fact that in the show cause notice the date has been fixed, the order has been passed prior to the said date, without giving an opportunity of hearing to the petitioner, which is in breach of sub-section (4) of section 129 of the Act. 4. It was further pointed out that penalty is sought to be imposed under section 129(1) of the Act, whereas section 122(1)(xiv) of the Act provides that where a taxable person who transports any taxable goods without the cover of documents as may be specified in this behalf, he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short collected or collected but not paid to the Government, etc., whichever is higher. 5. Reference was made to section 73 of the Act, which provides for dete
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dit wrongly availed or utilized by reason of fraud or any wilful misstatement or suppression of facts, and more particularly, to sub-section (8) thereof, which provides that where any person chargeable with tax under sub-section (1) pays the said tax along with interest payable under section 50 and a penalty equivalent to twentyfive per cent of such tax within thirty days of issue of the notice, all proceedings in respect of the said notice shall be deemed to be concluded. It was submitted that therefore, even in the case of fraud or wilful misstatement or suppression of facts, the statute provides for payment of penalty equivalent to twenty-five per cent of the tax within thirty days from the date of the notice. 7. It was further submitted that the statute is required to be read as a whole and that section 129 of the Act ought not to have been read in isolation. Reliance was placed upon the decision of the Supreme Court in Kailash Chandra and others v. Mukundi Lal and others, AIR 2002
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