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2022-TIOL-807-HC-KOL-GST
ACST Vs Subham Steel
GST - The intra Court appeal at the instance of the department is directed against the order dated 1st March, 2022 in W.P.A. No. 11085 of 2021. In the said writ petition, the respondent herein challeged the order passed by the Joint Commissioner (Appeal), CGST and CX, Kolkata Appeal - I Commissionerate dated 18th March, 2021. The said appeal filed before the Joint Commissioner was directed against the order of demand of tax and penalty in Memo dated 11th September, 2019 issued by the Assistant Commissioner of State Tax, Durgapur Range and summary of order under reference dated 11th September, 2019 passed by the Assistant Commissioner of State Tax, Kolkata South - The Single Bench while noting the fact found that the detention of the vehicle along with the goods and the demand of tax and penalty not to be justified on the ground that the eway bill, which was being carried in the vehicle transporting the goods had expired on the midnight of 8th September, 2019 and the goods were being transported on 9th September, 2019 and the vehicle was intercepted at 1.30 p.m.(noon) and according to the writ petitioner the vehicle transporting goods had broken down and on account of which, there was delay and there was no willful intention to evade payment of tax - Hence the Single Bench held that the petitioner was entitled to refund of penalty and tax paid on interest.
Held - The relief granted to the respondent-assessee by the Single Bench is justified - The Revenue Authorities concerned are directed to consider the respondent's refund application and disburse the same in 2 weeks' time: HC
+ There is no dispute as regards the quantity and description of the goods. The said vendor had raised the eway bill dated 7th September, 2019 as the goods were to be despatched from SRMB Srijan Pvt. Ltd. to the writ petitioner, who had its registered office at Kolkata. The said e-way bill was valid upto 9th September, 2019 since the approximate distance was about 168 kilometers. The writ petitioner's case was that they are traders and they had a supply order from Om Dayal Educational and Research Society, which also has its registered office at Kolkata but, however the goods had to be shifted to a place in Durgapur. Therefore, the writ petitioner raised a second e-way bill on 7th September, 2019 and since the distance from SRMB Srijan Pvt. Ltd., Durgapur to the Delhi Public School, Durgapur was only 9 kilometers, the e-way bill was valid only for one day, i.e. 7th September, 2019 to 8th September, 2019 (midnight); (Para 7)
+ We need not go into the controversy as to whether there was a break down of the vehicle, etc. The case has to be approached by considering the bona fides of the transaction as to whether the case warrants detention of the goods and collection of tax and penalty. Admittedly, the first e-way bill dated 7th September, 2019 was valid upto 9th September, 2019. Therefore, in the absence of second e-way bill, the tax authorities at Durgapur could not have intercepted or detained the vehicle. Therefore, the explanation offered by the respondent / writ petitioner was an acceptable explanation and a case cannot be made out that there was a deliberate and willful attempt on the part of the respondent / writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act. (Para 8)
- Writ Appeal dismissed/In favor of assessee: CALCUTTA HIGH COURT |
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