Calcutta High Court In the Circuit Bench at Jalpaiguri Appellate Jurisdiction Present :- Hon’ble Justice Amrita Sinha WPA 178 of 2023 Pushpa Devi Jain Vs.

Assistant Commissioner of Revenue, Bureau of Investigation, North Bengal Headquarters & Ors.

For the writ petitioner :- Mr. Boudhayan Bhattacharyya, Adv.

Mr. Sougata Banerjee, Adv.

Mr. Biswajit Basak, Adv.

Ms. Stuti Bansal, Adv.

For the Union of India :- Mr. Sourab Kar, Adv.

For the State :- Mr. Bikramaditya Ghosh, Adv.

Mr. Hirak Barman, Adv.

For the respondent no. 4 :- Mr. Ratan Banik, Adv.

Heard on :- 01.03.2023 Judgment on :- 03.03.2023 Amrita Sinha, J.:-

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.

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.

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.

On 18th July, 2022, an appeal was preferred. The said appeal was considered and rejected on 31st August, 2022.

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.

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.

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.

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. Limited &

Anr; 2022 SCC Online SC 115.

Reliance has also been placed on the judgment passed on 12th May, 2022 in MAT 470 of 2022 with I.A 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 15469 of 2022, Ramji Jaiswal & Anr. –vs- State Tax Officer, Bureau of Investigation (South Bengal) Kharagpur Zone & Ors.

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.

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 t