ORDER

This appeal is filed by M/s. Whirlpool of India Limited, D.No. 40-1-62, 63 and 64, 3rd Floor Hafeez Plaza, Near Benz Circle, Opp. Grand Super Market, Vijayawada (hereinafter referred to as ‘Appellant’) is assessee on the rolls of Assistant Commissioner of State Tax, Bhavanipuram Circle, No-I Division, Vijayawada against the tax assessment orders passed by the Deputy Assistant Commissioner of State Tax-III, Tenali, Gandhi Chowk Circle, Guntur Division (hereinafter referred to as ‘Inspecting Authority’/for short ‘LA.’) during the vehicular traffic check held on 20-8-2018 under APGST Act, 2017 in GSTIN : 37AAACW1336L1Z7 vide his orders dated 29-8-2019, disputing levy of amount of ₹ 1,70,760/- (Tax of ₹ 85,380/- & Penalty of ₹ 85,380/-).

2. The case is posted for personal hearing. The details thereof are as under :

Sl. No.	Date of notice issued	Posted for hearing on	Status of hearing
1.	5-12-2018	5-1-2019	Not Attended
2.	11-2-2019	21-3-2019	Attended
3.	29-3-2019	1-5-2019	Not Attended
4.	1-5-2019	18-6-2019	Attended
5.	8-7-2019	6-8-2019	Not Attended
6.	8-8-2019 (final)	11-9-2019	A.R. Attended

3. Sri V. Satyanarayana, Sales Tax Practitioner and Authorized Representative of the supplier (hereinafter referred to as ‘A.R.’) has appeared on earlier occasions and finally on 11-9-2019 for arguing the case. Finally, the appeal was heard by the Appellate Authority.

Statement of facts :

4. The appellant is an assessee on the rolls of the Assistant Commissioner of State Tax, Tenali, Gandhi Chowk Circle, No-I Division, Vijayawada.

5. The IA stated in his order that the appellant has transported goods vide Tax Invoices No’s (1) 912810025168, dated 18-8-2018 (2) 912810025169, dated 18-8-2018 connected with ‘e’ Waybills No’s. (1) 191060235414, dated 18-8-2018 (2) 181060236795, dated 18-8-2018 worth of goods for ₹ 4,74,340/-. The IA further stated that the goods vehicle has been checked on 20-8-2018, thus noticed that the ‘e’ Waybills have been expired because they were only valid up to 19-8-2018.

6. Therefore, the IA treating that the goods have been transported without valid ‘e’ Waybill, hence Levied Tax under CGST/APGST Act, 2017 as shown below :

Act	Tax	Penalty	Total
CGST	42,690/-	42,690/-	85,380/-
SGST	42,690/-	42,690/-	85,380/-

7. The IA also recorded that the appellant has admitted the offence and paid tax & penalty as applicable on his own.

8. Thus, the assessing authority has passed orders under CGST & APGST Acts, dated 29-8-2018, by levying total amount of ₹ 1,70,760/-.

9. Aggrieved by the above orders passed by the assessing authority, the appellant has preferred the present appeal and disputed the levy of tax & penalty in total amount of ₹ 1,70,760/-.

Grounds of appeal :

10. The grounds of appeal filed by appellant in the appeal are extracted hereunder;

(1) The action of the Deputy Assistant Commissioner-III (ST), Gandhi Chowk Circle for collecting the tax of ₹ 85,380/- (SGST 42690 + CGST 42690) and penalty of ₹ 85,380/- (SGST 42690 + CGST 42690) for the goods under transport on the allegation of expiry of ‘e’ waybill without considering facts and circumstances of the case.

(2) The appellant relies upon the Hon’ble AP High Court in the case of Good Health Agro Tech Limited, Hyderabad v. CTO, Mahaboobnagar Circle, (1996) 22 APSTJ 78 AP High Court it was held that “Collection of advanced tax at the check point while the transport is covered by proper papers under the guise of protecting the State revenue amount to arbitrary exaction without any authority of law and violative of Art. 265 of the constitution” and also Hon’ble High Court Judgment in Ambica Lamp House, Rajahmundry v. CTO (Int.)-I, Enft., Hyderabad (2005) 40 APSTJ 56 APHC.

(3) The provisions of Section 122 of the APGST Act has no application to the facts of case sub-item (xiv) of section 122 speaks transports any taxable goods without the cover of documents as may be specified in the behalf. In the instant case the appellant has produced all the required documents except advanced ‘e’ waybill and also the seller dealer has charged IGST in the invoices issued in favour of the appellant. The collection tax and penalty is without jurisdiction for the reason that the appellant is transported in the goods with valid documents.

(4) The provisions of Section 68 and Rule 138 read with Section 122 of the AP GST Act applies only when there is evasion of tax and not for expiry of ‘e’ Waybill.

Prayer : It is prayed to kindly declare the action of Deputy Assistant Commissioner-Ill (ST), Gandhi Chowk Circle, in collecting tax of ₹ 85,380/- and penalty of ₹ 85,380/- without establishing tax evasion is in violation of the provisions of Section 129(3) of the SGST Act and thereby order for refund of the tax of ₹ 85,380/- and penalty of ₹ 85,380/- unlaw fully collected. It is also prayed to declare the action of the inspecting authority is contrary to GOMS No. 309, dated 24-7-2017.

Discussion :

11. Perused the grounds of appeal filed by the appellant alongside the impugned order passed by the inspecting authority i.e. Deputy Assistant Commissioner of State Tax-III, Tenali, Gandhi Chowk Circle, Guntur Division.

12. The appellant contended that due to heavy rain on 19-8-2018, they could not transport the goods and also put forth that the distance between Uppalapadu and Eluru is 96Km as such the validity’e’ waybill is two days as prescribed in G.O.Ms. No. 309, dated 24-7-2017.

13. The appellant put forth the following case laws in support of their arguments.

(1)        The Hon’ble AP High Court in the case of Good Health Agro Tech Limited, Hyderabad v. CTO, Mahaboobnagar Circle, (1996) 22 APSTJ 78

(2)        The Hon’ble High Court Judgment in Ambica Lamp House, Rajahmundry v. CTO (Int.)-I, Enft., Hyderabad (2005) 40 APSTJ 56 APHC

14. The appellant further averred that the provisions of Section 122 of the APGST Act has no application to the facts of case sub-item (xiv) of Section 122 speaks transports any taxable goods without the cover of documents as may be specified in the be-half. In the instant case the appellant has produced all the required documents except advanced ‘e’ Waybill and also the seller dealer has charged IGST in the invoices issued in favour of the appellant. The collection tax and penalty is without jurisdiction for the reason that the appellant is transported in the goods with valid documents.

Issues for adjudication :

(1)        Whether the appellant contention that validity period for ‘e’ waybill is two days as per G.O.Ms. No. 309, dated 24-7-2017, is applicable to the present case or not?

(2)        Whether the appellant put forth any dependable and acceptable explanations against the levy of tax/penalty, by I.A or not?

Analysis :

15. Perused the grounds of appeal along with assessment order passed by the Inspecting Authority, and after thorough verification of records, the findings of the appellate authority are stated below;

16. Before embarking on adjudication of this issue, it is relevant here to examine and understand G.O.Ms. No. 309, dated 24-7-2017 and GST Rule 138(9) of APGST Act, 2007, hence these are abstracted hereunder for better clarity.

G.O. MS. No. 309 Dated : 24-7-2017

Read the following :

(1)        The Andhra Pradesh Goods and Services Tax Act, 2017 (Act No.16 of 2017) published in Extraordinary issue of Andhra Pradesh Gazette No. 16, Part. IV.B, dated : 7-6-2017.

(2)        From the Commissioner, Commercial Taxes, A.P., Vijayawada Letter No. CCW/ GST/74/2015, dated 10-7-2017.

** ** **

ORDER :

The following notification will be published in an Extraordinary issue of the Andhra Pradesh Gazette, dated : 24-7-2017 :

NOTIFICATION

Whereas, Section 68 of the Andhra Pradesh Goods and Services Tax Act, 2017 (Act No. 16 of 2017) provides that the Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed;

And, whereas, rule 138 of the Andhra Pradesh Goods and Services Tax Pules, 2017, stipulates that till such time as an ‘e-way bill system’ is developed and approved by the Council, the Government may, by notification, specify the documents that the person in charge of a conveyance carrying any consignment of goods shall carry while the goods are in movement or in transit storage;

Now, therefore, in exercise of the powers vested under Section 68 of the Andhra Pradesh Goods and Services Tax Act, 2017 (Andhra Pradesh Act No. 16 of 2017), read with Rule 138 of the Andhra Pradesh Goods and Services Tax Rules, 2017, the Government of Andhra Pradesh hereby notifies the document known as e-Way bill that is to be issued by the taxable person or any other person.

This notification will come into force with immediate effect and will be in operation till 30-9-2017.

(1)        Every registered person or unregistered person or a person liable to be registered under the AP Goods and Services Tax Act, 2017 shall generate e-Way bill in Form GST Waybill_1.

(2)        e-Waybill is required for the movement of goods which are not exempted under the Act for all purposes i.e., coming into the State or going out of the State or for the movement within the State, when the value of goods excluding tax exceeds Fifty Thousand Rupees.

(3)        However, the issue of an e-Waybill shall not be necessary where a person, who is not a taxpayer, transports his household goods or other articles for his own use from one place to another.

(4)        Generation of e-Waybill shall be the responsibility of the person as specified in the Table-1 below :

TABLE-1
Nature of the transaction	Person to generate Form GST e-Waybill_1
(1)	(2)
Inter-State	(a)   Supplier registered in AP (b)   Recipient registered/unregistered in AP/liable to be registered
Intra-State	(a)   Supplier registered in AP. (b)   If supplier is unregistered and recipient is registered – recipient has to generate (c)   If Supplier and recipients are unregistered – un registered supplier has to generate

(5)        The person shall enter the details of such goods in the Waybill in Form GST e-Waybill_1 with vehicle number in triplicate and issue the original and duplicate thereof duly signed by him or his manager or agent to the owner or the other person in charge of the goods vehicle. However, if the vehicle number is not known and the goods are handed over to the Transporter for Transport, the person can mention the same in the e-Waybill form. Further, when goods covered by a single invoice are carried in more than one goods vehicle, a separate ‘e-Way bill’ has to be generated for each vehicle.

(6)        If the transporter carries goods of single way bill without mentioning the vehicle number by the persons mentioned in Table -1 or carries goods of more than one e-Waybill he shall generate ‘Transporter Declaration’ Form which is a consolidation of all the way bills carried by him before commencement of transport of goods as per the details of forms GST e-Waybill_1 in duplicate.

(7)        No Transporter Declaration Form is required if the Transporter carries goods of a single e-Waybill on which vehicle number is mentioned.

(8)        In case of transhipment of goods to some other vehicle because of breakdown of vehicle Transhipment Declaration needs to be generated. Transhipment Declaration shall be generated by the Transporter himself. If the goods are transported by the person (as per Table 1) in this own vehicle the person himself has to generate Transhipment Declaration. As per Para (7) above exemption was given to the Transporter from generation of Transporter Declaration. In case of Transhipment in 3 such cases the Transporter has to generate Transporter Declaration first and then generate Transhipment Declaration.

(9)        The ‘Form GST e-Waybill_1’ and ‘Transporter Declaration’ Form shall accompany the goods and shall be tendered by the person-in-charge of the goods vehicle to the officer who checks the vehicle, where the goods vehicle first checked in the State and after getting it verified and attested by the officer, the original should be retained by the officer and the duplicate shall be returned to the person submitting such Form GST e-Waybill_l or Transporter declaration form and he shall carry duplicate form along with goods vehicle.

(10)      The persons specified in Table-1 shall carry documents as per the provisions of AP Goods and Services Taxes Act, 2017, in addition to the e-Waybill.

(11)      e-Waybills generated only through APCT web portal (www.ewaybill.apct.gov.in) under the authority of the Chief Commissioner shall be valid.

(12)      Form GST-e-Waybill_l or Transporter Declaration Form can be cancelled only within 24 hours of generation with valid reasons.

(13)      In order to ensure that there are no instances of misuse of the facility of e-Waybill system, the following validity period is fixed based on the distance. Period is to be calculated from the time of generation of the Form GST-e-Waybill_l or Transporter Declaration Form or Transhipment Declaration Form whichever is the latest :

(1)        If the distance from the origin of the goods to the destination is less than 100KMs, Validity period is two (2) days from the day and time of generation.

(2)        If the distance from the origin of the goods to the destination is between 101 KMs and 500 KMs, Validity period is three (3) days from the day and time of generation.

(3)        If the distance from the origin of the goods to the destination is between 501 KMs and 1000 KMs, Validity period is five (5) days from the day and time of generation.

(4)        If the distance from the origin of the goods to the destination is between 1001 KMs and 2000 KMs, Validity period is ten (10) days from the day and time of generation.

(5)        If the distance from the origin of the goods to the destination is 2001 KMs and above, Validity period is twelve (12) days from the day and time of generation.

(14)      This notification is not applicable for the dealers engaged in sale and purchase of (1) Alcoholic liquor for human consumption (2) Petroleum crude (3) High speed diesel oil (HSD) (4) Motor spirit (commonly known as petrol) (5) Natural gas (6) Aviation turbine fuel and registered under AP VAT Act, 2005 and they will continue to follow the procedures under the AP VAT Act, 2005 for generation of e-Waybill.

Rule 138(9) of APGST Act, 2017 :

(9) Where an e-way bill has been generated under this rule, but goods are either not transported or are not transported as per the details furnished in the e-way bill, the e-Way bill may be cancelled electronically on the common portal within twenty four hours of generation of the e-Way bill :

Provided that an e-way bill cannot be cancelled if it has been verified in transit in accordance with the provisions of Rule 138B :

Provided further that the unique number generated under sub-rule (1) shall be valid for a period of fifteen days for updation of Part B of FORM GST EWB-01.

(10) An e-way bill or a consolidated e-way bill generated under this rule shall be valid for the period as mentioned in column (3) of the Table below from the relevant date, for the distance, within the country, the goods have to be transported, as mentioned in column (2) of the said [Table].

TABLE
Sl. No.	Distance	Validity period
(1)	(2)	(3)
1.	Up to 100 km.	One day in cases other than Over Dimensional Cargo
2.	For every 100 km. or part thereof thereafter	One additional day in cases other than Over Dimensional Cargo
3.	Up to 20 km	One day in case of Over Dimensional Cargo
4.	For every 20 km. or part thereof thereafter	One additional day in case of Over Dimensional Cargo

17. On a primary perusal of G.O.Ms. No. 309, dated 24-7-2017, it is to be comprehended that the instructions in this G.O. are only applicable till date 30-9-2017, but not applicable to the present case, which was detected on 20-8-2018. Therefore, the appellant contentions with reference to this G.O are rejected.

18. It is further pertinent here to record that as per APGST Rule 138(9), whenever any dealer could not transport the goods within the validity time of ’e’ Waybill, such ‘e’ waybill needs to be cancelled electronically in the common portal within 24 hours of generation. But, in the present case though the dealer contended that there was heavy rain on 19-8-2018, that’s why, they could not transport the goods, however failed to cancel the ‘e’ waybill within 24 hours of generation. Rule 138(10) clearly prescribes that validity of ‘e’ waybill for a distance up to 100km is one day only. The case law put forth by the appellant have also been perused and found to have no relevance to the present dispute on hand.

19. Regarding penalty also, the appellant could not put forth any dependable explanations and the Inspecting Authority’s action on this aspect are found to be legitimate.

Conclusion :

20. In view of the above stated findings & circumstances and considering the clearly envisaged Rule provision on this aspect, the appellant contentions cannot be accepted and fount to be rejectable. Therefore, the levy of tax and penalty, need not be interfered with and to be upheld as legitimate, and the appeal is dismissed by confirming the tax and penalty so levied by the inspecting authority.

Result of the appeal :

21. In the result, the levy of tax & penalty by the inspecting authority, are confirmed, and the appeal stands dismissed.