It is only a mere presumption that tax has been evaded if at the time of verification some documents are missing with E-way bill

Case Title

M/s Vijay Steels, Hyderabad

Vs

Deputy Commercial Tax Officer, Mehbubnagar, Telangna

Court

Telangna  High Court

Honorable Judges

Justice M. S Ramchandra Rao

Citation

2021 (4) GSTPanacea 20 HC Telengana 
W.P.A. 2869 of 2021

Judgement Date

28-April-2021

Council for Petitioner

 Vijay Steels

Council for UOI

 

Council for State

 Deputy Commerical Tax Officer, Telangna

The Telangna High Court bench of Justice M. S Ramchandra Rao and Justice T Vinod Kumar has held that Vehicle carrying two different goods to different consignees with separate E-way bills can be loaded at operational convenience of transporter

FACTS OF THE CASE

The Assessee ( petitioner) is a trader in steel registered under the CGST Act, 2017 having registered office in Secunderabad. The petitioner book purchase of material from M/s. Santosh Steel and Pipes India Private Limited, Dadra and Nagar Haveli. The assessee hired transportation service from Dadra and Nagar Haveli to Secunderabad.  The transporter also booked the material of other supplier of, Adoni, Andhra Pradesh from the M/s. Santosh Steels, Dadra and Nagar Haveli to Adoni. The separate E-way bills was generated for the both the supply i.e Dadra to Adoni 937 km aprox. And to secundarabad approx 867 kilometers. The assessee submitted that the transporter while loading the goods on the goods loaded the material of the petitioner first, and then loaded the material which has to be delivered at adoni as the quantity of the petitioner amounting to 14320.90 kgs. was more and much heavier than the material supplied to be at adoni which was 2018.15 kgs.; and so was loaded on top of the goods vehicle for operational convenience . As the driver of vehicle is from Hyderabad too he thinks fit to deliver the adoni first for convenience. As per assessee, the transporter had intended to unload the material on the top of the goods vehicle at Adoni first; that the goods vehicle passed through Patancheru Ring road and crossed Jadcherla on its way to Adoni in Kurnool District; and while the vehicle was on its way to Adoni, it was intercepted at Annasagar, Mahabubnagar District by the respondent on 29.12.2020 and detained by him on the ground that the ‘documents of the vehicle were defective’ and that ‘the transaction in respect of the e-waybill was finished at Hyderabad, but they were further transported to Adoni without invoice and e-way bill’ and proposed Rs.3,68,555/- as GST and Rs.3,68,555/- as penalty, and issued a show-cause notice to the petitioner on 31.12.2020. 

COURT HELD

Considering the facts the court does not accept the respondent view whether the goods meant to be delivered at Adoni( Andhra Pradesh) first was loaded at top first even the Hyderabad comes first, and its is not said this meant to be mal practice of section 129 of the ACT and evasion of tax. The court held that respondent had acted mechanically without application of mind to the operational convenience of transporter.

Accordingly, the Writ Petition is allowed; the order of detention on 29.12.2020 passed under Section 129(3) of the CGST Act, 2017 by the respondent is set aside; it is declared that the action of the respondent in detaining the goods conveyance Mahabubnagar District and demanding payment of GST and penalty is arbitrary, illegal and violative of Articles 14 and 300A of the Constitution of India; and the respondents are directed to refund to the petitioner within four (4) weeks the sum of Rs.3,68,555/- towards GST and penalty of Rs.3,68,555/- paid by the petitioner on 04.01.2021 with interest at 6% per annum from 04.01.2021 till the date of payment.

ANALYSIS OF THE JUDGEMENT

Before detaining or passing any order the GST authority shall be expected to act with application  of mind not mechanically while there is no illegal activity done by assessee or no intention to evade the tax.

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Telengana High Court