This appeal has been filed under Section 107 of the Goods and Service Tax Act, 2017 by M/s Ganesh Enterprises, Basement BG-234, Sanjay Gandhi Transport Nagar North Delhi-110033.(hereinafter also referred to as “the appellant”) against Order in Original No. 01/GST/2018 dated 25.09.2018 (hereinafter referred to as “the impugned order”) passed by Assistant Commissioner, CGST, Division-G, Sikar (hereinafter also referred to as “the adjudicating authority”).

2.  Brief Facts of the case

2.1 The appellant is having GSTIN No.07ALTPB6947K1ZH is engaged in Trading  of FMCG and Pan Masala Products. On 15.08.2018, the officers, of the CGST Division-G, Sikar have intercepted a conveyance/vehicle bearing No. RJ 23 GB 3811  at Jhunjhunu. The goods in movement were inspected under the provisions of sub-section (3) of Section 68 of the CGST Act 2017 (hereinafter referred to as the ‘Act’) read with Section 20 of the IGST Act, 2017. On examination of the documents, the following discrepancies were noticed:-

(a) The E-way Bill no.711024171310 dated 11.08.2018 was found to be defective as the type of vehicle was entered as Over Dimensional Cargo(ODC) while the vehicle was two axle truck no. RJ 23 GB 3811

(b) The type of vehicle was deliberately entered as ODC to avail maximum timings to supplement the trips under one e way Bill No. 711024171310 dated 11.08.2018 to evade the payment of IGST which was, endorsed by the statement of driver Shri Banshi Lal Yadav dated 15 08.2018.

The impugned goods and the conveyance used were detained under sub- section (3) of Section 68 of CGST’ Act 2017 read with Section 20 of the IGST Act 2017. However, the appellant on dated 05.09.2018 deposited the amount of IGST and Cess  ₹ 17,25,460/- (₹ 5,49,010/- + Cess ₹ 11,76,450/-)    and penalty ₹ 17,25,460/- under Section 129 (1) (a) of the Act, Penalty ₹ 17,25 460/- under Section 122 (2) (b) of the Act and ₹ 25,000/- under Section 122(3) of the Act ibid. The impugned goods and conveyance were released on 05.09.2018 after payment of tax, fine and penalty. The impugned goods and conveyance were released after appropriation of duty and penalty amount.

3.  Further, the adjudicating authority has passed the impugned order which are as under:-

i) Ordered the seizure of goods i.e. Tansen Pan Masala alongwith conveyance i.e. Truck No. RJ 23GB 381 carrying the goods and order to release the same on payment of applicable tax and penalty under Section 129(1) (a) of the CGST Act, 2017 read with IGST Act, 2017. Since the applicable tax IGST ₹ 5,49,010/- and Cess ₹ 11,76,450/- and equal penalty of ₹ 17,25,460/- had already been deposited vide CPIN No. 18090700016836 dated 05.09.2018. Further ordered to appropriate the  same to the Govt exchequer and released the goods and conveyance i.e. Truck No. RJ 23GB 3811 

ii) Imposed a penalty of ₹ 17,25,460/- on M/s Rajdhani Cargo Carriers, Chamber No. 10, Sangam Tower, Opp. Court, Sikar under Section 122(1)(xiv) of the Act. Since the amount of  ₹ 17,25,460/- had been deposited vide CPIN No. 18090700016836 dated 05.09 2018 and ordered to appropriate the same to the Govt exchequer.

iii) Imposed a penalty of ₹ 25,000/- on Shri Banshi Lal Yadav, Driver and the person in-charge of the vehicle under Section 122(3) of the Act. Since the amount of ₹ 25 000/- had been deposited vide CPIN No.18090700016836 dated 05.09 2018 and ordered to appropriate the same to the Govt exchequer.

4.  Being aggrieved with the impugned order, the appellant has filed the appeal on  various grounds which are summarized as under:

(i)  That the demand has been confirmed only on the basis of the statement of the driver and not supported by corroborative evidence. In support of their defence they also relied upon the case of M/s Hisser Pipes Pvt. Ltd. 2015(317) E.L.T. 136(Tri-Del).

(ii)  That the adjudicating authority has confirmed on the basis of Original trip as Second Trip which was not supported by any corroborative evidence.

(iii)  That the adjudicating authority has confirmed the penalty treating the route as off the route from the regular route whereas route from Delhi to Jhunjhunu is shortest route in terms of kilometer: as per Google map.

(iv) E-way Bill histories of transporter also show that in case of consignor M/s Ganesh Enterprises it’s unintentionally mentioned type of vehicle as ODC and consignor never have any intention regarding evasion of tax.

(v) That Section 129(5) of CGST Act 2017 provides that on payment of amount under Section 129(1) of CGST  Act 2017 all the proceedings in respect of notice specified in sub-section 3 of Section 129 shall be deemed to be concluded.

(vi) The adjudicating authority did not give any specific finding against the above submission of the appellant hence the confirmation of the demand towards penalty under Section 122(2)(b) and 122(3) is required to be set aside.

5.  Personal Hearing in the case has been conducted on 06.03.2019. Shri Gaurav Agarawal Chartered Accountant and Authorised Representative appeared for personal hearing. He explained the case in detail and reiterated the grounds as mentioned in their appeal memo. He further requested to decide the case on the basis of records available.    

6.  I have carefully gone through the case records and submissions made in their  appeal memorandum and discussion held at the time of personal heating.

7.  On perusal of the facts available on record, I find that the appellants contention  that the demand has been confirmed only on the basis of statement of driver is not  correct. In this regard, I find that the adjudicating authority in Para 5.2 of the impugned order also stated that the e-way Bill was generated intentionally by entering into the type of vehicle as ‘ODC’ to avail maximum timings to supplement the trips which enables the time of delivery of goods available to the transporter to 31 days in case of ‘ODC’ cargo as against 7 valid days in case of ‘regular cargo’. Thus, the appellant has done this act deliberately and intentionally to evade the GST. Also the cargo departed from Delhi on 12.08 2018 at 11.00 A.M. whereas, the cargo intercepted by the CGST  officers on 15.08.2018 at 11.50 A.M. The distance between Delhi and Jhunjhunu is about 220 km which the vehicle can cover in six hours. In this regard, the appellant could not give satisfactory reply as to how the vehicle has taken so much of time in reaching Jhunjhunu from Delhi. Three days is sufficient time for exercising second trip. Thus, in this manner all the activities undertaken by the appellant clearly shows the ill intention of the appellant to evade GST payment by transporting the impugned goods  adopting off the route. Also, the story of reaching late due to technical problem is not acceptable as the appellant has not submitted any valid documents/reasons in their support at the time of investigation as well at the time of personal hearing.

 8.  Further, I also find force in the findings given in Para 5.5 by the adjudicating authority, wherein, the details of e-way bills for the said vehicle from common portal revealed that an E-way bill 741022787374 from Delhi to Bikaner (447 Km) carrying Tansen Pan Masala of M/s Genesh Enterprises, BG-234, Basement, Sanjay Gandhi Transport Nagar, Delhi was generated on 03.08.2018 with ‘ODC’ as the type of vehicle and the same was valid upto 26.08.2018. But the same vehicle was used again to supply of goods on 09.08.2018 against e-way bill No. 71 1023813091 from Parbatsar to Delhi which was valid upto 13.08.2018, this time i.e. from Parbatsar to Delhi carrying VPRINT, 2UC, ESSCARB1, was entered as regular cargo instead of ODC. Thus it is  revealed that when the truck loaded with Tansen Pan Masala, the type of vehicle entered into the e-way bill was ODC and the same truck when loaded with other  the goods  type of vehicle entered was regular Cargo. These corroborative evidences are well supporting the driver’s statement. The nature of the vehicle can not be changed irrespective of the goods loaded into it Any truck/vehicle can be either ODC OR REGULAR CARGO as it has been registered under Central Motor Vehicle Act, 1989. Its nature can not be changed on the basis of goods loaded into the truck. In view of this facts the plea of the appellant that the adjudicating authority has confirmed the demand on the basis of original trip as second trip which was not supported by any corroborative evidence is also not acceptable. The case law submitted by the appellant in the instant case in their support is not applicable. The plea of the appellant that the distance from Delhi to Jodhpur via Jhunjhunu is shortest and hence on this ground the impugned order is to be set aside can not be accepted as it is not strong evidence in deciding the case.

9. The appellant’s submission that the penalty under Section 122(2)(b) and Section129(1)(a) is not sustainable in the light of provisions made under Section 129(5) of the CGST’ Act, 2017. In view of this provision the appellant has requested to set aside the confirmation of penalty imposed under Section 122 (2) (b) and Section 122 (3) of the Act. The appellant’s contention is not acceptable as the transporter has violated the provisions of Section 122 (1) (xiv) for which penalty was imposed upon the transporter M/s Rajdhani Cargo Carriers and not upon the appellant hence appellant’s submission that penalty was imposed under Section 122 (2) (b) on them is not correct, The penalty on the driver of the vehicle has been imposed for violation of Section 122 (3) (b) as he was knowing that the goods carried out by him has been removed clandestinely without payment of duty.

In view of the above findings, I reject the appeal filed by the appellant and upheld the order passed by the adjudicating authority.