DAILY EXPRESS Versus THE ASSISTANT STATE TAX OFFICER, STATE GST DEPARTMENT, KOLLAM, COMMISSIONER OF KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, OFFICE OF THE COMMISSIONER OF KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM AND STATE OF KERALA, THIRUVANANTHAPURAM
GST
2019 (3) TMI 596 – KERALA HIGH COURT – 2019 (24) G. S. T. L. 26 (Ker.)
KERALA HIGH COURT – HC
Dated:- 4-2-2019
WA. No. 253 of 2019
GST
MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ.
For The APPELLANT : ADV. SUJINI S
For The RESPONDENT : SR GP SRI MOHAMMED RAFIQ FOR RESPONDENTS
JUDGMENT
Ashok Menon, J.
Could the transporter having no tax liability, for the goods transported, face detention, seizure and penalty, as provided under Section 129 of the Central Goods and Services Tax Act, 2017 (“CGST Act” for brevity)?, is the question that arises for consideration in this appeal over WP(C) No.35665/2018 before us.
2. The facts in brief are thus:
The petitioner is a transporting fir
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gment dated 29.11.2018, the Writ Petition was dismissed holding that the provisions under Section 129(1)(b) applies to the transporter as person interested in the goods and therefore, Exts.P5 to P7 notices of detention do not suffer from any legal infirmity calling for interference.
4. We have heard Smt.S.Sujini, learned counsel appearing for the appellant/petitioner and Sri.Mohammed Rafiq, learned Senior Government Pleader appearing for the Revenue.
5. It is submitted by Smt.Sujini that even admittedly, there is no case of tax evasion made out. The invoices were all in order and the only infraction was non-filling of Part-B of the e-way bill. The learned counsel draws our attention to Section 126 of the CGST Act to argue for the proposition that no officer shall under this Act impose any penalty for minor breaches of tax regulations or procedural requirements and in particular, any omission or mistake in documentation which is easily rectifiable and made without fraudulent intent or
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o.76/50/2018-GST, F.No.CBEC-20/16/04/2018-GST of Government of India, Ministry of Finance dated 31.12.2018, wherein it has been clarified that the 'owner of the goods' for the purpose of Section 129(1) of the CGST Act would be either the consignor or the consignee, if the invoice or other specified document is accompanying the consignment of goods. According to the learned counsel, in the instant case, the consignment was with all accompanying documents pertaining to the sale and therefore, the transporter could not be mulcted with liability to pay tax and penalty as per Ext.P7.
6. Sri.Mohammed Rafiq, learned Senior Government Pleader would contend that infraction of Section 129 would be liable for penalty as stated therein irrespective of whatever is stated in any other provision in the Act, because Section 129 is a self contained code by itself as the Section starts with a non-obstante clause. The provision is applicable to “any person transporting any goods”, which would al
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nor breach', if the amount of tax involved is less than five thousand rupees. Hence for that reason alone, Section 126 is not attracted in the instant case.
9. This Division Bench had occasion to consider a similar matter in 2018 KHC 498 : 2018(3) KLT SN 53 [Assistant State Tax Officer and Another v. M/s.Indus Towers Limited] (2018 (7) TMI 1181 – KERALA HIGH COURT), wherein a question of release of goods ordered as provided under sub-Section (1) or order passed under sub-Section (3) of Section 129 of the CGST Act was raised, and it was held by us as thus:-
“The finding that the transaction would not fall within the scope of taxable supply under the statute, cannot be sustained for reason of there being no declaration made under R.138. The resultant finding that mere infraction of the procedural rules cannot result in detention of goods though they may result in imposition of penalty cannot also be sustained. If the conditions under the Act and Rules are not complied with, defini
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