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GST - E-way bill - gross chaos due to quick changes, even field officers could not track - seeking adherence to compliance of provisions which stood substituted and had become otiose is an unauthorized act: HC

Published: Sep 25, 2018

By TIOL News Service

ALLAHABAD, SEPT 25, 2018: SEIZURE orders and notices issued under sections 129 (1) and (3), respectively, by various authorities, mainly on the ground that E-Way Bill-01 under U.P. GST Act 2017 read with IGST Act, 2017 and Rules framed thereunder did not accompany the goods when they were intercepted.

The petitioners challenge these actions on the ground that there is no requirement of accompaniment of the said E-Way Bill; that the provisions of Provincial Statute cannot override provisions of Central Statue and, in any case, omission is only indeliberate and unintentional.

After narrating the evolution of the CGST and the IGST law and extracting the various provisions therein and material to the matter involved read with the UPGST Act and the Rules framed thereunder, the notifications issued u/r 138 of the UPGST Rules, the High Court inter alia observed thus -

+ Since Rule 138 which came into force on 01.02.2018 vide Notification dated 31.01.2018 provided a complete procedure itself including the Forms, we have no hesitation in observing that Rule 138 read with all subordinate legislation namely, Government's Notification dated 21.07.2017 and Commissioner's Circular dated 22.07.2017, 27.07.2017 and 09.08.2017 insofar as not consistent with Rule 138 (made effective from 01.02.2018), ceased to be operative on and after 01.02.2018.

+ After 01.02.2018, Form Numbers required under Rule 138 (as came into force on 1.2.2018), were different than what was alleged to be non-possessed or obtained by Petitioners or Transporters, carrying goods in dispute by making reference to Government's Notification dated 21.07.2017 and Commissioner's Circular dated 09.08.2017. Even the authorities concerned, it is evident, were not clear as to what are the correct Forms in these cases.

+ It is not the case of respondents that the Forms consistent with Rule 138 made effective from 01.02.2018 were made available on the portal.

+ Under Rule 138(10), period of validity of e-way bill was clearly different than what was mentioned in Commissioner's Circulars dated 09.08.2017. Thus, Rule 138 as was brought in by Notification dated 31.01.2018 w.e.f. 01.02.2018 was operative during the period of transactions with which we are concerned in the present set of writ petitions…

+ Seizure orders, show cause notices and final orders (wherever passed) in writ petitions under consideration, (except Writ Petition No. 87 of 2018) we find that concerned authority, in all above documents, has referred to Government's Notification dated 21.07.2017 and Commissioner's Circular dated 09.08.2017, though the Forms were already changed, procedure was also made different vide Rule 138 brought in by Notification dated 31.01.2017, made effective from 01.02.2018. These orders, therefore, passed by authorities concerned are clearly erroneous due to mistake of relevant provisions, hence apparently it is difficult to sustain the same.

+ It appears that legislative changes were made in such a quick succession that field authorities could not track themselves with such changes and, hence, adhered to compliance of provisions which stood already substituted by new provisions and earlier ones had become otiose.

+ Insistence upon petitioners, at the time of issue of seizure memos and show cause notices to have downloaded E-way-bill 01 and/or 02 and its non-compliance by referring to Government's Notification dated 21.07.2017 read with Commissioner's Circulars dated 22.07.2017 and 09.08.2017 and also Rule 138 as substituted vide Government Notification dated 20.09.2017, though it was never imposed and made operative, was/is clearly erroneous and illegal.

+ Notification dated 31.01.2018 whereby Rule 138 was completely changed by substitution and made effective from 01.02.2018, it appears, escaped attention of authorities concerned, though it is this provision which had to be complied by petitioners. Unfortunately, authorities concerned have completely failed to observe the same.

+ It appears that for the field authorities there was a gross chaos on account of quick changes in relevant provisions, hence, authorities concerned could not appreciate, what provision is supposed to be followed by concerned person and what is actual default, if any, which has been committed by such person. Petitioners (except Writ Petition No. 87 of 2018) in the present cases, when goods in transit were intercepted and impugned orders were issued, met an unauthorized act and suffered illegal order.

+ To complete the story, we may observe that Rule 138 again stood substituted by Notification dated 26.03.2018 which has come into force on 01.04.2018 but here also sub rule (7) has not been made effective …impugned orders have been passed under a clear misconception of non-downloading of e-way bill 01 or 02, as the case may be, though under Rule 138, which had come into force on 01.02.2018, the Form(s) required to be downloaded by Dealers or Transporters are different.

+ Neither it can be said that Petitioners have deliberately committed any fault or disobeyed law intentionally or fraudulently, particularly when respondent-authorities themselves were not very clear. It also cannot be said that there is/was any intention of evasion of tax on the part of these petitioners.

+ Seizure orders, show-cause notices issued under section 129 (3) and final orders, if any, are not sustainable in law.

++ Insofar as, Writ Petition no. 87 of 2018 is concerned, orders of seizure and show-cause notices are referable to Rule 138 as came into force on 29.06.2017 read with Government's Notification dated 21.07.2017 and Commissioner's Circulars dated 22.07.2017 and 09.08.2017…We find that only a showcause notice has been issued which is under challenge. Petitioner has remedy of submitting reply to the same before authority concerned and if final order is passed even thereafter there is remedy of appeal. We therefore find no reason to interfere with the seizure order and showcause notice impugned in writ petition no. 87 of 2018. Instead we relegate petitioner to avail remedy provided under the Statute.

In fine, except the WP no. 87 of 2018 (which is dismissed), all the other petitions were allowed by setting aside the seizure orders, show cause notices and final orders impugned in the said petitions.

(See 2018-TIOL-127-HC-ALL-GST)