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IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH JALPAIGURI
AMRITA SINHA, J.
Pushpa Devi Jain – Petitioner
Versus
Assistant Commissioner of Revenue, Bureau of Investigation and Others – Respondents
WPA No. 178 of 2023
Decided On : 03-03-2023
Rajasthan Sales Tax Act, 1994 – Section 78 –West Bengal Goods and Services Tax Act, 2017 – Section 129(3) – Imposition of penalty - Petitioner challenges the order passed by adjudicating authority under Section 129(3) of West Bengal Goods and Services Tax Act, 2017 and order affirming same by appellate authority – Held, Hon’ble Supreme Court held that in penalty for statutory offences, there is no question of proving of intention or of mens rea as same is excluded from category of essential element for imposing penalty – Penalty is attracted as soon as there is contravention of statutory obligations – Intention of parties committing such violation is wholly irrelevant – Supreme Court on repeated occasions has held that a statutory authority does not have any power to do anything unless such powers are specifically enumerated in the Statute which creates it – Authority merely performs statutory obligation – Here, it does not appear that authority acted in any manner contrary to law – Travelling without a proper e-way bill attracts penalty – Authority assessed penalty amount and petitioner deposited same without a murmur – Dismissed.
JUDGMENT :
AMRITA SINHA, J.
1. The petitioner challenges the order passed by the adjudicating authority under Section 129(3) of the West Bengal Goods and Services Tax Act, 2017 and the order affirming the same by the appellate authority.
2. The goods of the petitioner were found moving without a valid e-way bill. The vehicle was intercepted, inspected and thereafter detained as the person in charge of the goods failed to produce a valid e-way bill. The goods were later released upon payment of penalty.
3. A show cause notice was issued and opportunity of hearing was given to the petitioner. The proposed penalty was accepted and paid by the tax payer on 25th April, 2022 without raising any objection. The adjudicating authority, in the absence of any objection, confirmed the penalty.
4. On 18th July, 2022, an appeal was preferred. The said appeal was considered and rejected on 31st August, 2022.
5. Learned advocate for the petitioner contends that the imposition of penalty is illegal as the petitioner did not have any deliberate intention to evade tax. The vehicle in question suffered a breakdown in the course of journey and the same had to be repaired prior to resuming movement. The e-way bill expired in the last lap of the journey when the vehicle was only twenty kilometres away from the final destination. The genuine reason which prevented the goods from being transported on time was not at all considered by the respondent authority and penalty has been imposed in a mechanical manner.
6. It has been argued that the authority ought to have exercised their discretion to invoke the relevant sub section of Section 129 of the Act instead of routinely imposing penalty directing payment of amount equal to two hundred percent of the tax payable on the goods transported.
7. Reasonable opportunity of hearing was not granted to the petitioner prior to passing the order of penalty at the adjudicating stage or before the appellate forum. The purpose of providing opportunity of hearing to the concerned person has been rendered otiose as the penalty was imposed mechanically in a predetermined manner.
8. It has been argued that the issue whether penalty can be imposed if the goods are transported without a valid e-way bill is no longer res integra and has been conclusively decided by the Hon’ble Supreme Court in Assistant Commissioner (ST) and Others vs. Satyam Shivam Papers Pvt. Ltd. and Another, 2022 SCC Online SC 115.
9. Reliance has also been placed on the judgment passed on 12th May, 2022 in MAT No. 470 of 2022 with I.A No. CAN 1 of 2022; Assistant Commissioner, State Tax, Durgapore Range, Government of West Bengal vs. Ashok Kumar Sureka, Proprietor of Subham Steel and the order dated 26th July, 2022 in WPA No. 15469 of 2022, Ramji Jaiswal and Another vs. State Tax Officer, Bureau of Investigation (South Bengal) Kharagpur Zone and Others.
10. Prayer has been made for setting aside the order passed by the adjudicating authority, appellate forum and for refund of the penalty amount which has been collected arbitrarily upon non application of mind.
11. The respondents oppose the prayer of the petitioner. It has been contended that due opportunity was given to the petitioner as envisaged in law. The petitioner failed to submit any reply to the show cause issued. No document to support that the vehicle was moving and the goods were transported in accordance with the provisions of law could be produced either at the adjudicating stage or at the appellate forum.
12. It has been submitted that the petitioner never raised any objection at the initial stage and paid the penalty that was imposed. The appeal was a formal one without any supporting documents. As the vehicle was found to be moving without the valid papers, the authority acted in accordance with the relevant statute and imposed penalty.
13. Before the High Court the petitioner cannot be permitted to raise the objection for the first time, more so, after everything is over.
The imposition of penalties under tax laws requires clear evidence of intent to evade tax, and procedural fairness must be upheld in enforcement actions.
The intention to evade tax, non-taxable nature of goods movement, and the relevance of valid documents are crucial in imposing penalties under Section 129 of the Act.
A penalty under Section 129(3) of the Act requires proof of mens rea for tax evasion, which was absent in this case, leading to the quashing of the penalty orders.
The imposition of penalties for minor discrepancies in tax-related documents without intent to evade tax is not justified under the CGST/SGST Acts.
The main legal point established in the judgment is the requirement for generating e-way bills before the commencement of transportation of goods, the burden of proof on the taxpayer to establish lac....
Expiration of an e-Way Bill during transit does not invoke penalties under Section 129 without evidence of intent to evade taxes.
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