Calcutta High Court In the Circuit Bench at Jalpaiguri Appellate Jurisdiction Present :- Hon’ble Justice Amrita Sinha WPA 340 of 2023 Asian Switchgear Private Limited Vs.

State Tax Officer, Bureau of Investigation, North Bengal Headquarters & Ors.

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

Ms. Stuti Bansal, Adv.

For the State :- Mr. Subir Kumar Saha, Ld. AGP Mr. Bikramaditya Ghosh, Adv.

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

The petitioner is aggrieved by the order passed by the adjudicating authority subsequently affirmed by the appellate authority imposing penalty under Section 129(3) of the West Bengal Goods and Services Tax Act, 2017. Prayer has been made for setting aside the aforesaid orders with a direction for refund of the penalty amount.

The e-way bill in question was generated on 10th June, 2022 and the same was valid upto 21st June, 2022. The vehicle number against which the e- way bill was generated was specifically mentioned therein. The goods which were being transported against the aforesaid e-way bill were intercepted on 19th June, 2022, from a different conveyance, not mentioned in the e-way bill. On demand, the person in charge of the goods and conveyance failed to produce any document in support of the said goods being transported by a different conveyance.

As there was failure on the part of the person in charge to produce documents in support of the movement of the goods, the goods were seized and later released on payment of penalty under Section 129(3) of the West Bengal Goods and Services Tax Act, 2017.

Learned advocate for the petitioner submits that as the vehicle in which the goods were originally loaded for transportation and e-way bill generated suffered a break down in the course of journey, accordingly, the person in charge had to arrange for a different conveyance for transporting the said goods. The goods in question are electrical switches which are manufactured as per the requirement of the Arunachal Pradesh Government and there is no scope for selling the said goods in the open market as there will be no buyers for the same.

It has been submitted that had the initial vehicle not suffered a mechanical snag, the said vehicle would have certainly reached the final destination within the validity period of the e-way bill. The break down was an unforeseen event, completely beyond the control of the petitioner. There was no intention to evade tax.

The respondent authorities did not give a proper opportunity to the petitioner to defend and imposed penalty in a mechanical and routine manner without appreciating the genuine difficulty on the part of the petitioner for not being able to transport the goods in the vehicle against which the e-way bill was generated.

It has been argued that as the e-way bill was still valid on the date and time of interception of the goods, accordingly, penalty under Section 129(3) of the Act ought not to have been imposed. It has been submitted that fair opportunity was not provided to the petitioner either at the adjudication stage or before the appellate forum. The show cause reply was not considered properly and the same was an empty formality, mechanical in nature. The penalty was determined prior to the opportunity of hearing given to the petitioner which is contrary to the provision of Section 129(4) of the Act.

It has been argued that instead of imposition of hefty penalty amount, the authority ought to have released the goods upon furnishing a security as per Section 129(1)(c) of the Act. The authority ought to have appreciated the reason for temporary shipment of the goods via a different conveyance and ought not to have imposed penalty after detecting that the description of the goods mentioned in the e-way bill matches the goods seized on interception.

It has been submitted that the petitioner would not have gained anything by transporting the goods by a different conveyance as the goods cannot be sold over the counter in an