This appeal has been filed under Section 107 of the Goods and Service Tax Act, 2017 by Shri Nemi Chand, (Driver/Person In-Charge), Vehicle/Conveyance No.RJ-32-GA-8579 Nimeda, Srimadhopur, Sikar C/o M/s Eureka Forbes Limited (Owner of the Goods) 7, Chakraberia Road(South), Kolkata-700025 (hereinafter also referred to as “the appellant”) against Order No.11/E-way bill/CGST Div-B/18-19/7252 dated 06.12.2018 (hereinafter referred to as “the impugned order”) passed by Assistant Commissioner Central Goods & Service Tax Division-B, Jaipur  (hereinafter also referred to as “the adjudicating authority”).

Brief facts of the case:-

2.1 The brief facts of the case are that on 30.11.2018 at 05.52 PM a conveyance bearing No.RJ-32-GA-8579 was intercepted in movement at Naya Khera, Vidhyadhar Nagar, Jaipur by the Officers of CGST Division-B, Jaipur. The statement of the Driver/Person In-Charge, of the vehicle was also recorded on 30.11.2018. The goods in movement were inspected under the provisions of sub section (3) of Section 68 of the Central Goods and Service Tax Act, 2017 and the following discrepancies were found:-

(a) Some material/goods were found without invoice and E-way Bill and the rest of the material were also without valid E-way Bill as the vehicle number was different in the said E-way Bill.

2.2. In view of the above, the impugned goods and the conveyance used for the movement of goods were detained under sub-section (1) of Section 129 of Central Goods and Service Tax Act’ Act 2017 read with sub-section (3) of Section 68 of the State/Union Territory Goods and Service Tax Act,  2017 or under Section 20 of the Integrated Goods and Service Tax Act, 2017 read with sub section (3) of Section 68 of the CGST Act, 2017 by issuing an order of detention in FORM GST MOV 06 and the same was served on the person in charge of the conveyance and owner of the vehicle on 03.12.2018. As the appellant has not objected and refused for any notice and personal hearing in the instant case. M/s Eureka Forbes Limited, 7, Chakraberia Road, (South) Kolkata-700025 as owner of the impugned goods has come forward to pay tax and penalty, claiming the goods in the conveyance. They also provided copy of invoice in which the price of inspected goods has been found. Accordingly, the adjudicating authority has passed the impugned order. The adjudicating authority apart from confirming the demand of Tax amounting to ₹ 1,18,390/- (CGST amounting to ₹ 59,195/- +. SGST amounting to ₹ 59,195/-) also imposed penalty. The impugned goods and conveyance used for transport of goods were released after depositing of Tax arid penalty amount. The owner of the goods i.e. M/s Eureka Forbes Limited, GSTIN 08AAACE5767F1ZK has deposited the Tax (CGST and SGST @ 9% of ₹ 59,195/- each) vide Challan No. CNN 18120800022032 dated 06.12.2018 and penalty equal to 100% tax payable vide Challan No. 18120800022032 dated 06.12.2018.

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

(i)  that the impugned order is bad in law, against the provisions of RGST & CGST Act, 2017 and against principles of natural justice, therefore to be quashed in its entirety.

(ii)  that the only defect/discrepancy pointed out by the adjudicating authority is that “Some material is without invoice and e way bill and the rest of the material is without valid E-way bill as the vehicle Number is different in the said e-way bill”. The appellant company  submitted the detailed reply supported with all documentary evidences and requested to release the goods and vehicle but the adjudicating authority did not accept the same and passed impugned order on the sole ground that mistake has been committed under Section 68 (1) of the CGST Act, 2017 in not correcting the vehicle number in e-way bill and this mistake does not render the noticee free of intention of evasion of GST. Thy mistake occurred are of simply technical in nature which do not cause any revenue loss and further more the same were not made with pre-determined intention to do so.

(iii) that out of the total 92 Pkts, the 17 pkts were already handed over to the transport company on 30.11.2018 from one invoice number272270007112 containing  57 pkts, in support of which the appellant company has also obtained a certificate from the transport company.

(iv)  that the adjudicating authority has passed the order without conducting any enquiry for arriving at correctness of the facts and submission as explained in their defence.

(v)  that the appellant company has not admitted their liability rather for an early release of the goods and vehicle.

(vi)  that the show cause notice no.7199 dated 04.12.2,018 proposing therein to attend the office on 05.12.2018 is not proper as the appellant has been given only one day.

(vii) that the adjudicating authority in the impugned order dated 06.12.2018 in which the name of person in-charge has been mentioned as Sh. Nemichand when the appellant company has come forward to present their case.

(viii) that the adjudicating authority in impugned order in FORM MOV-09 in the column of “Details of conveyance detailed” the adjudicating authority has mentioned the name of some other vehicle as RJ 14 GA 6858 whereas no such vehicle has ever been used by the appellant company or their logistics for movement of the goods in question. The goods have been moved in RJ-32-GA-8579 in place of vehicle number RJ 14 GA 9070 but all the entries are fully verifiable and identifiable from the records maintained by the appellant company. Thus the mistake occurred in filling the details of conveyance by the adjudicating authority.

The appellant has also submitted various case laws in support of their contention which may be summarised as under:

VSL Alloys (India) Pvt Ltd., Vs State of U.P. & Another (2018) 30 GST & VR 60 (Allahabad HC) dated 13.04.2018.

Bhumika Enterprises Vs State of U.P. Writ Tax No.564 of 2018 decided on 03.04.2018 by Allahabad HC (2018) 51 TUD 45 (Allahabad HC) 

Hindustan Steel Limited Vs State of Orissa (1070) 25 STC 211 (Supreme Court) 

Rai Prexim India Private Limited Vs State of Kerala (Kerala High Court) Decided on 04.12.2018 in WP(Civil) No.39022 of 2018 

Board Circular No.64/38/2018-GST dated 14.09.2018.

4.  Personal Hearing in the case was conducted on 20.01.2020. Shri V.K. Gogra, Advocate appeared on behalf of the appellant and explained the case in detail and reiterated the grounds as mentioned in the appeal memorandum and also submitted additional written submission dated 20.01.2020 and requested to decide the case as per available records and submission made by them.

5.  I have carefully gone through the case records and detail submissions made by the appellant in the appeal memorandum as well as additional written submission dated 20.01.2020 at the time of personal hearing.

6.  The appellant has contested the imposition of Tax and Penalty and in this regard I find that department had made the case against the appellant on the ground that the appellant had cleared some material/goods without invoice and e way bill and the rest of the material is without valid E-way Bill as the vehicle number is different in the said E-way bill. In this regard, I find that the adjudicating authority in impugned order dated 06.12,2018 no where mentioned that how much quantity was without invoice, without E-way bill and further no specific mention has been made in impugned order’ about the rest of tree material/goods which was without valid E-way bill, only the adjudicating authority has mentioned in order that the vehicle number is different in the said E-way bill. The adjudicating authority in impugned order in the column Conveyance Number has mentioned RJ-32-GA-8579 whereas in the column details of conveyance detained has been mentioned as R3-14-GF-6858 whereas on perusal of order no such vehicle has been used by the appellant in movement of goods. From the above, it appeared that adjudicating authority while passing the order has not paid proper attention.

7.  I find that M/s Eureka Forbes Limited, GSTIN  08AAACE5767F1ZK, the owner of the goods usually supplies of water purifiers and vaccume cleaner through their logistics firm i.e. M/s Yusen Logistics (India) Pvt Ltd SP 636 (A-2) Road No.6, VKI Area, Jaipur-302013 who handles the logistics and generally despatches the goods to transport company i.e. M/s Asian pacific Cargo which is situated at Bani Park, Jaipur the distance between logistic firm and transporter is less than in the radius of 50 Kilometer for further transportation the goods in all over the State at their end, through vehicle i.e. Pickup RJ 14 GA 9070 after generating the e-way bill with regard to goods in movement. On 30.11.2018 their logistics firm i.e. M/s Yusen Logistics (India) Pvt Ltd SP 636 (A-2) Road No.6, VKI Area, Jaipur-302013 who handles the logistics work of M/s Eureka Forbes Limited prepared two invoices as per below mentioned detail for dispatching of goods to transport company i.e. M/s Asian pacific Cargo which is situated at Bani Park, Jaipur for further transportation of goods for end destination.

8. On perusal of the facts on record I find that the appellant’s contention that on 30.11.2018 due to month end pressure, the goods were being sent continuously through their regular vehicle RJ  14 GA 9070 in respect of above invoices. When the goods were being loaded in the vehicle the labour could not differentiate the goods as per invoices and in a hurried manner loaded the 17 Pkts from invoice No. 272270007112 dated 30.11.2018 in their aforesaid vehicle i.e. RJ 14 GA 9070 for which the appellant has also submitted a certificate from transporter M/s Asian pacific Cargo, Bani Park, Jaipur that 17 Pkts of invoice No. 272270007112 dated 30.11.2018 has been received by the transporter. The rest of the 75 Pkts related to Invoice No. 272270007112 and 272270007121 both dated 30.11.2018 were loaded in another vehicle number RG 32 GA 8579 which were intercepted by the department. All related documents i.e. E-way bill and invoices etc., were also available with the Driver/person in charge of the vehicle (Shri Nemichand) but by mistake the correction in the E-way bill in column of vehicle number could not be made and these 75 Pkts were allowed to move to the place of transporter for further transportation. The adjudicating authority has not discussed any thing in the impugned order. The appellant’s contention in this regard is that as per Rule 138 (3) of CGST Rules, 2017, where the goods are transported for a distance upto 50 Kms from the place of business of the consignor to the place of business of transporter for further transportation, the transporter may not furnish the details of conveyance in Part-B of Form GST-EWB-01. I find filling up of Part-B of the e-way bill is a must for movement of the goods, except for within the same state movement between consignor place to transporter place, if distance is less than 50 Kms. In this case also I find that the goods are transported for a distance of less than fifty kilometers within the State from the place of business of consignor to the place of transporter for further transportation of goods, then the vehicle number is not mandatory.

As per Rule 138 of the CGST Rules, 2017- Information to be furnished prior to commencement of movement of goods and generation of e-way bill (1) Every registered person who causes movement of goods of consignment value exceeding fifty thousand rupees-

(i) in relation to a supply; or

(ii) for reasons other than supply; or

(iii) due to inward supply from an unregistered person,

shall, before commencement of such movement, furnish information relating to the said goods as specified in Part A of Form GST EWB-01, electronically, on the common portal along with such other information as may be required on the common portal and a unique number will be generated on the said portal:

Provided further that where the goods to be transported are supplied through an e-commerce operator or a courier agency, on an authorization received from the consignor, the information in Part A of FORM GST EWB-01 may be furnished by such e-commerce operator or courier agency and a unique number will be generated on the said portal:

(2)  Where the goods are transported by the registered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or a public conveyance, by road, the said person shall generate the e-way bill in FORM GST EWB-01 electronically on the common portal after furnishing information in PART B of FORM GST EWB-01.

(3)  Where the e-way bill is not generated under sub-rule  (2) and the goods are handed over to a transporter for transportation by road, the registered person shall furnish the information relating to the transporter on the common portal and the e-way bill shall be generated by the transporter on the said portal on the basis of the information furnished by the registered person in Part A of FORM GST EWB-01.

Provided that the registered person or, the transporter may, at his option, generate and carry the e-way bill even if the value of the consignment is less than fifty thousand rupees:

Provided further that where the movement is caused by an unregistered person either in his own conveyance or a hired one or through a transporter, he or the transporter may, at their option, generate the e-way bill in FORM GST EWB-01 on the common portal in the manner specified in this rule:

Provided also that where the goods are transported for a distance of upto fifty kilometres within the State or Union territory from the palace of business of the consignor to the place of business of the transporter for further transportation, the supplier or the recipient, or as the case may be, the transporter may not furnish the details of conveyance in Part B of FORM GST EWB-01.

The e-way bill shall not be valid for movement of goods by road unless the information in Part-B of FORM GST EWB-01 has been furnished except in the case of movement covered under the third proviso to sub-rule (3) and the proviso to sub-rule (5).

As per Notification No.12/2018 dated  07.03.2018 in Rule  138 (3) third proviso which clearly states that where the goods are transported for a distance of upto 50 kms within the State from the place of business of the consignor to the place of transporter for Uther transportation, the supplier or the recipient, as the case may be, the transporter may not furnish the details of conveyance in Part-B of Form GST EWB-01, the appellant was not under an obligation to fill Part-B of the e-way bill, therefore, the appellant has not committed any error of law at the time of downloading e-way bill. Thus I am in full agreement with the submission of appellant and after perusal of the relevant document, I find no intention at the hands of the appellant nor the appellant was supposed to fill up Part-B giving all the details including the vehicle number before the goods are loaded in a vehicle, which is meant for transportation to the same to its transporter. Merely of none mentioning of the vehicle number in Part-B can not be a ground for seizure of the goods. Moreover, there is no loss of revenue. In this case, no reasons are assigned nor any discussion is mentioned in the impugned order of seizure by the adjudicating authority. It is obligatory on the part of adjudicating authority to pass an appropriate reasoned order.

9. In the instant case before me, the appellant has submitted copies of both the invoices along with E-way Bills mentioning there in all details in Part A except the corrected vehicle number in Part-B which they himself admitted that they could not change the vehicle number which is a technical error and which was not mandatory because the movement of vehicle was within the 50 Km area. Since the appellant himself admitted their mistake by not correcting the vehicle number and accompanied the E-way bill with wrong vehicle number along with the goods. They are liable for a penalty under Section 125 of the CGST Act, 2017.

10.  In view of the above discussion and findings and after considering the legal requirement of documents in the instant case I hereby set aside the impugned order passed by the adjudicating authority and allow the appeal filed by the appellant. I impose a penalty of Rs,25,000/-(Rupees Twenty Five Thousand only) under Section 125 of the CGST Act, 2017 on the appellant.

The appeal is disposed off in above manner.