JUDGMENT

Rohit Ranjan Agarwal, J.

Heard Sri Rahul Agarwal, along with Sri Varun Srivastava, learned counsel for the petitioner and Sri A.C.Tripathi, learned Standing Counsel for the State.

2. This writ petition has been filed assailing the order dated 15.05.2018 passed by Additional Commissioner, Grade-II (Appeal)- 05, Commercial Tax, Kanpur in proceedings under Section 129 (3) of the U.P. Goods and Service Tax Act, 2017 (hereinafter called as "Act of 2017").

3. The petitioner before this Court is a registered dealer and had sold 300 bags of Pan Masala valued at Rs.33,81,000/- to a dealer at Meghalaya. A tax invoice was generated on 08.04.2018 under the Integrated Goods and Service Tax Act, 2017 (hereinafter called "IGST Act") charging 28% IGST and 60% Cess on the transaction.

4. According to petitioner, the goods were handed over to transporter M/s Bombay Kandla Transport Pvt. Ltd. for transporting the goods to Meghalaya through Truck No.NL01N/6504 and a E-Way bill was generated on 08.04.2018 itself. The transporter, on the same day, also issued a bility for transporting the goods to Meghalaya.

5. According to petitioner, the Vehicle No.NL01N/6504 was used for transporting fruits and vegetable to West Bengal by Bombay Kolkata Logistics through bility No.382/08-04-2018 and the journey had already commenced on 07.04.2018. The vehicle returned to Delhi on 11.04.2018 and again on 12.04.2018 the same vehicle was loaded with rice to be transported to Darbhanga (Bihar) by Hemkunt Logistics through bility No.305. The vehicle returned on 17.04.2018 at about 6 P.M. and was made available to the petitioner for transporting Pan Masala. The journey began on intervening night of 17/18.04.2018. The goods were intercepted on 18.04.2018 at 3.42 P.M. by the Mobile Squad at Kanpur. At the time of interception of goods, the driver had produced tax invoice and bility. The goods were detained and thereafter seizure order was passed on 01.05.2018 and 100% penalty of Rs.33,81,000/- along with tax of Rs.9,46,680/- and Cess of Rs.20,28,600/- total amount Rs.63,56,280/-, was imposed. Aggrieved by the seizure order, an appeal was preferred by the petitioner which was dismissed by the order impugned, hence, this writ petition.

6. Learned counsel for the petitioner submitted that the taxing authorities were wrong to pass the order impugned as the goods, which were being transported, were carrying all necessary documents i.e. tax invoice, bility, and E-way Bill. According to him, the E-Way Bill was generated on 08.04.2018 itself and the vehicle number was mentioned. Due to the fact that the vehicle was used for transporting fruits and vegetable to West Bengal and thereafter rice to Darbhanga, it was made available to the petitioner on 17.04.2018 and the E-Way Bill was existing when the goods were to be transported. According to him, the finding returned by the Appellate Authority cannot be accepted that the E-Way Bill should have been cancelled once the goods were not dispatched on the same day. There is no compulsion to cancel E-Way Bill in view of Rule 139(9). As the vehicle was made available by the transporter on 17.04.2008, the goods were loaded and dispatched on the intervening night 17/18.04.2018. According to him, it is not a case where goods were detained by the Mobile Squad without any document and there being evasion of tax by the assessee.

7. Per contra, learned Standing Counsel while opposing writ petition submitted that the E-Way Bill, which was generated on 08.04.2018, specifically mentioned the vehicle number. Further, the transporter bill