In this petition, the petitioner has sought for the following prayer:
(i) A writ of certiorari or a writ in the nature to set aside the common order dated 22.01.2020 in GST.AP 13/2018-19 and GST.AP. 14/2018-19 passed by the Second Respondent vide Annexure-A;
(ii) A writ of certiorari or a writ in the nature of certiorari to set aside the order bearing No.ADCOM/ENF/SZ/CTO-34/CRM/12/18 19 dated 15.11.2018 in FORM GST MOV 09 passed by the first Respondent demanding Tax of ₹ 2,30,186/- and equivalent Penalty of ₹ 2,30,186/- under the provisions of the Central GST Acts vide ANNEXURE-B,
(iii) A writ of Mandamus or a direction in the nature of mandamus directing the respondents to refund the amount of tax and penalty deposited by Petitioner pursuant to the order bearing No.ADCOM/ENF/SZ/CTO-34/CRM/12/18 19 dated 15.11.2018 in FORM GST MOV-09 passed by the first Respondent at ANNEXURE-B, and
(iv) Issue any other writ or order as this Hon’ble Court may deem fit.
2. The brief facts giving rise to present petition are that the petitioner sold TMT Bars worth of ₹ 15,09,000/- to M/s Bharatiya City Developers Prv. Ltd., vide invoice on 05.11.2018 and entrusted transfer of the goods to one M/s M.R. Transports and E-way Bill was generated in this regard on 05.11.2018 at 1.31 p.m. It contended that pursuant to, goods were transported and they reached the destination. The specific contention of the petitioner is that the E-way bill was valid up to 11.59. p.m. on 09.11.2018, however, much prior to the aforesaid time i.e., 11.59 p.m, on 09.11.2018, the goods in question had reached its destination and the driver of the vehicle had fallen asleep and consequently the goods were not unloaded at the destination point. It is further contended that before the goods were unloaded at the destination point, on the next day i.e., 10.11.2018 at about 6.15 a.m, the respondent seized the goods and issued notice dated 10.11.2018 to the petitioner under Section 129(3) of the CGST Act, 2017. It is the grievance of the petitioner that despite the petitioner submitting the detailed reply inter alia contending that the goods had reached destination before 11.59 p.m. on 09.11.2018 prior to expiry of E-way bill, the respondent proceeded to pass the impugned order at Annexure-B levying tax and penalty on the petitioner.
3. Aggrieved by the impugned order dated 15.11.2018, the petitioner preferred an appeal. By the impugned order at Annexure-A dated 22.01.2020, the Appellate Authority dismissed the appeal filed by the petitioner thereby confirming the order passed by the Assessing Authority. Aggrieved by the impugned orders passed by the Prescribe Authority as well as the Appellate Authority, the petitioner is before this Court by way of present petition.
4. In addition to reiterating the various contentions urged in the petition and referring the documents produced by the petitioner, learned counsel for the petitioner invites my attention to the letter dated 07.05.2019 addressed by the petitioner to JAS Toll Road Company Limited, which was in charge of Toll plaza at Nelamangala, which was about 30 k.m., from the destination point at R.K. Hegde Nagar. It is submitted that in response to the aforesaid letter addressed by the petitioner, the said JAS Toll Road Transport Company Ltd., has issued an endorsement at Annexure-M confirming the that the vehicle in question has passed through the said Toll Plaza at about 3.55 p.m on 09.11.2018 itself and consequently the only inference that could be drawn in the facts and circumstances of the case is that the vehicle in question reached the destination point on 09.11.2018 itself much prior to 11.59 pm., by which time the E-way bill expired. It is contended that both respondent Nos.1 and 2 have failed to consider and appreciate this crucial piece of evidence and have come to the incorrect conclusion that the vehicle did not reach the destination prior to 11.59 p.m. and consequently, the impugned orders passed by the respondents deserves to be set aside.
5. In support of his contention, learned counsel places reliance upon the decision of this Court in the case of M/S Hemanth Motors vs. State of Karnataka & Others in W.P.No.3337/2020 dated 20.11.2020, which was confirmed in W.A.No.381/2021 dated 27.07.2021 in order to contend that so long as vehicle and goods have reached destination point prior to expiry of E-way bill, the impugned orders passed by the respondents are illegal and arbitrary and deserve to be quashed.
6. Per contra, learned AGA in addition to supporting the impugned orders submits that the material on record clearly indicates that the vehicle had not reached destination point prior to expiry of E-way bill at 11.59 p.m. on 09.11.2018 and vehicle was intercepted much prior to same reacing its destination at 6.15 a.m. on 10.11.2018 and consequently, the impugned orders passed by respondent Nos.1 and 2 are just and proper and do not warrant interference by this Court in the present petition.
7. I have given my anxious consideration to the submissions made by learned counsel for the parties and perused the material on record.
8. Though several contentions have been urged by both sides in support of their respective claims, a perusal of impugned orders passed by respondent Nos.1 and 2 – Prescribed Authority and Appellate Authority clearly indicate that though the petitioner has contended that he has produced the documents relating to vehicle in question passing through Toll Plaza at Nelamangala at 3.54 p.m on 09.11.2018 itself, the said documents have not been adverted to, much less considered or appreciated by the respondents before passing the impugned orders. Under these circumstances, without expressing any opinion on the merit/demerit on the rival contentions and in order to give one more opportunity to the petitioner to produce the said documents at Annexures-L & M before the Prescribed Authority, to establish his claim that the vehicle and goods had reached the destination point on 09.11.2018 prior to expiry of the E-way bill at 11.59 p.m on 09.11.2018, I deem it just and proper to set aside the impugned orders and remit the matter back to respondent No.1 – Prescribed Authority for re-consideration afresh in accordance with law after giving one more opportunity to the petitioner to file additional documents and additional objections if any, and thereafter to proceed and conclude the proceedings in accordance with law.
9. In the result, I pass the following order:
a) Petition is hereby allowed.
b) The impugned order dated 22.01.2020 passed by respondent No.2 vide Annexure A and order dated 15.11.2018 passed by respondent No.1 vide Annexure-B are hereby set aside.
c) Matter is remitted back to respondent No.1 for re-consideration afresh after giving one more opportunity to the petitioner to produce the additional documents and to file additional objections before respondent No.1
d) Respondent No.1 is directed to grant an opportunity to the petitioner to produce documents, objections etc., and thereafter proceed and conclude the proceedings in accordance with law.