Case Title | M/s Hanuman Ganga Hydroprojects Private Ltd Vs Joint Commissioner, Sales Tax Authority, Siliguri, West Bengal. |
Court | Calcutta High Court |
Honorable Judges | Justice Hiranmay Bhattacharya |
Citation | W.P.A. 1480 of 2022 2022 (7) GSTPanacea 104 HC Calcutta |
Judgement Date | 06-July-2022 |
Council for Petitioner | Dr Navin Barik Anup Kumar Bhattacharjee Esha Acharya |
Council for Respondent | Subir Kr Saha Bikramaditya Ghosh |
The Court of Justice Hiranmay Bhattacharya has held that penalty u/s 129(3) is not applicable on goods dispatched under an E-way bill where validity period has elapsed.
FACTS OF THE CASE
Petitioner is registered company under CGST & SKGST, engaged in the business of executing hydro and renewable energy related projects. In relation to execution of project petitioner required a hydraulic mobile crane, which he procured from a manufacturer at Haryana. Crane was transported by road from Haryana to petitioners project in Sikkim on the basis of E-way Bill dated 25th September,2021 valid till midnight of 03rd October 2021. The vehicle carrying crane was intercepted and detained by the Respondents on dated 03rd October 2021, Sunday when it was parked at bypass. A show cause notice u/s 138(10) of WBGST Rules,2017 for not having valid E-Way Bill was served to the petitioner which was duly replied back by him. On 8th October,2021 the adjudicating authority passed order for levy and demand of tax and penalty. Being aggrieved petitioner challenged the impugned order before appellate authority, who had on 18th April ,2022 rejected the appeal and upheld the impugned order.
The petitioner challenged orders of adjudicating and appellate authorities before the Hon. Court by the writ and requested that for minor delay in extending validity period of the E-Way bill without an intention to evade tax should not be punished with imposition of penalty. The petitioner referred to an identical judgement of Division Bench passed on 12th May 2022 in the case of Asst. Commissioner , state tax, Durgapore Range, Govt. of WB Vs Ashok Kumar Sureka, prop. of Subham Steel.
Counsel for respondent submitted that procedure for extension of validity period of the E-way bill is very simple. To justify levy of penalty counsel objected by saying that breach for delay in extending validity period of the E-Way bill should not be considered as minor breach.
COURT HELD
Considering the facts as recorded, Hon. court accepted the replies of petitioner and observed that breach in extending the validity of E-way Bill is not grave breach, also that petitioner had no intention to evade the payment of tax. Respondents impugned order dated 8th October,2021 and 18th April,2022 were quashed and set aside.
Respondent were ordered to refund amount of tax and penalty recovered from the petitioner within 3 weeks from date of communication of copy of Hon. Court’s judgement order.
ANALYSIS OF THE JUDGEMENT
Levy of tax and penalty u/s 129(3) on goods dispatched under an E-way bill having just elapsed validity period in a bonafied case is not justified.
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