IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941 WP(C).No.1918 OF 2020(L) PETITIONER/S: BON CARGOS PRIVATE LIMITED, PERINGAPPURAM, NH 66, MYLAKKAD, KOTTIYAM, KOLLAM -691571. REPRESENTED BY ITS GENERAL MANAGER, MR.MANOJ KUMAR R. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM RESPONDENT/S: 1 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, (DEPARTMENT OF REVENUE) NORTH BLOCK, NEW DELHI- 110001. 2 ASSISTANT STATE TAX OFFICER, MOBILE SQUAD NO.II, STATE GOODS AND SERVICES TAX DEPT., KERALA, THIRUVANANTHAPURAM-695002. 3 DEPUTY COMMISSIONER(INTELLIGENCE) KERALA STATE GST DEPARTMENT, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM-695002. R1 BY SRI.S.BIJU, CGC OTHER PRESENT: SMT.M.M.JASMINE, GOVT.PLEADER, SRI.P.VIJAYAKUMAR, ASGI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.1918 OF 2020(L) 2 ALEXANDER THOMAS, J. ----------------------------------------- W.P.(C.) No. 1918 of 2020 ----------------------------------------- Dated this 4th day of February, 2020 JUDGMENT prayers in above W.P.(C.) are as follows : (i) call for records leading to Exhibits P2, P3, P4 and P5 issued by 2 nd respondent, and quash same by issuance of writ of certiorari or such other order or direction. (ii) Declare that action of 2nd respondent in continuing with detention of vehicle of petitioner and goods carried therein, consignment value per invoice of which, is below Rs.50,000/- as being illegal, arbitrary, unfair, unreasonable and contrary to statutory scheme (iii) grant such other and incidental reliefs as this Hon'ble Court may deem just and necessary on facts and circumstances of this case. (iv) Allow this Writ petition (Civil) with costs to petitioner. 2. Heard Sri.M.Gopikrishnan Nambiar, learned counsel appearing for petitioner and Smt.M.M.Jasmine, learned Government Pleader appearing for respondents. 3. case set up in W.P.(C.) is as follows : That petitioner is Goods Transport Agency (GTA) registered under GST Acts. On 10.01.2020, conveyance/vehicle of petitioner which was entrusted with transportation of electrical good from M/s. G M Impex Pvt. Ltd. (Consignor) to M/s. Flower Electricals & Agencies, Attingal (the Consignee) was intercepted by 2 nd respondent. Pursuant to inspection, vehicle and goods contained therein were detained by 2nd respondent on ground that Part B of E-way WP(C).No.1918 OF 2020(L) 3 bill that facilitates transportation of goods, was not updated, by petitioner. specific case of petitioner is that value of goods (which are distinct and having separate HSN numbers) as per invoices is less than Rs.50,000/- and therefore, there is no requirement of generation of E-way bills, going by Rule 138 of CGST Rules, 2017. 2 nd respondent has proceeded to impose fine and penalty on petition totaling up to Rs.20,274/- upon payment of which only, conveyance and goods would be released. 4. That action of 2nd respondent is wholly arbitrary since Rule 138 of CGST, Rules clearly prescribes that transporter/GTA is required to update Part B of E-Way bill only in event that value of each individual consignment is above Rs.50,000/-. On facts of case, four invoices were raised by Consignor of which only one was worth more than Rs.50,000/- on account of which, petitioner duly updated Part B of E-Way Bill for this particular invoice. However remaining consignments were under Rs.50,000/- threshold and hence, there was no legal obligation on petitioner, whatsoever, to update Part B of these invoices. Consignments are to be considered individually and not as sum of all goods carried in conveyance and therefore, detention of Petitioner's vehicles and goods as also arbitrary imposition of tax and penalty are unsustainable in eyes of law. 5. main contentions urged by petitioner are as follows : WP(C).No.1918 OF 2020(L) 4 (a) That petitioner is challenging continued detainment of its conveyance and goods contained therein by 2 nd respondent. (b) That petitioner is also challenging arbitrary imposition of tax and penalty by 2 nd respondent for want of Part B of E-Way bill. (c) That Part B of E-Way Bill in FORM GST EWB-01 is only required to be updated by GTA if value of each consignment if worth more than 50,000/- (d) where value of each consignment is below such amount, petitioner cannot be held liable for not updating Part B since statute imposes no such condition. (e) issuance of separate invoices are owing to fact that goods are of four distinct specifications for which one common invoice cannot be raised. Further, separate E-Way Bills with four distinct Part A's were raised by consignor. transporter is required to raise Part B only to corresponding Part A, value designation in which is more than Rs.50,000/- (f) That Act does not make any prescription that where Consignor, Consignee and date of invoices are same, one common invoice/E-Way Bill has to be raised. goods here are distinct. (g) That since there has been no statutory breach on part of petitioner, conveyance and goods may be released and WP(C).No.1918 OF 2020(L) 5 imposition of tax and liability, quashed. 6. It is urged by learned counsel appearing for petitioner that consignor supplied electric goods in different HSN code, and therefore, raised four separate invoices to consignee. These invoices were numbered as MD14112/12-20, MD14116/19-20, MD14134/19-20 and MD14139/19-20 dated 09.01.2020 respectively. petitioner was engaged to transport such electrical goods from Consignor to Consignee. As per Rule 138 of CGST Rules, 2017, generation of E-way bills is to ensure smooth facilitation of transportation of goods, wherein consignment value exceeds Rs.50,000/-. consignor generated four E-Way Bills dated 09.01.2020 and numbered as 5311 5989 1857, 5911 5989 1206, 5711 5989 0364 and 5411 5989 6053, for transportation of such goods. value of goods as per invoices amounted to Rs.8036/- 37,552/-, 71,379/- and 10,726/- respectively. It is submitted that part of such E-Way bill in FORM GST EWB-01 is to be raised by Consignor, in accordance with Chapter XVI, Rule 138 of Central Goods and Service Tax Rules, 2017. Rule 138(3) and proviso thereunder, specifies that at his option, registered person or transporter may generate and carry E-Way Bill, even if value of consignment is less than Rs.50,000/-. 7. specifications of goods pertaining to each said invoices, its values and status has been given as tabular column in para 4 on page 3 WP(C).No.1918 OF 2020(L) 6 of memorandum of W.P.(C.) which reads as follows : INVOICE NO. TYPE OF HSN NO. VALUE OF E-WAY BILL GOOD INVOICE STATUS MD14112/12-20 Flush Mounting 8538 Rs.8,036.00 Part updated Metal Gang box MD14116/19-20 13AMP 8536 Rs.37,552.00 Part updated international Socket-Electric Grey MD14134/19-20 2 Way Switch- 8536 Rs.71,379.00 Part A+ Part B Glossy White updated MD14139/19-20 Wavio Wood 8538 Rs.10,726.00 Part updated Walnut 8. main contention urged by petitioner is that requirement for updating part B of e-way bill is required only in case where value of consignment concerned is above Rs. 50,000/- and that in case where value of consignment is upto Rs.50,000/- or below that, then requirement of updating part-A and part-B of E-Way bill is not mandatory and compulsory and is only optional at instance of party concerned. It is pointed out that only value of Sl.No.3 of consignment is more than Rs.50,000/- , its value being Rs.71,379/- and for that consignment, indisputably, petitioner has updated both part and part B of E-way bill and in case of all other three consignments, respective value of each such consignment is well below threshold limit of Rs.50,000/- and consignor has indeed updated part of E-Way bill but transporter has not furnished part-B of E-Way bill. Further that, grounds for detaining goods as noted by 2nd respondent in impugned Ext. P5 proceedings is as follows : WP(C).No.1918 OF 2020(L) 7 consignor issued multiple invoices to consignee to avoid generate e-way bill and evade tax. consignor issued 3 invoices to consignee on same date is 09.01.2020 . 9. Hence it is deliberate attempt to escape from generating e-way bill. It is urged that abovesaid grounds noted by 2 nd respondent in impugned Ext.P5 detention order is without any legal or material basis, inasmuch as statutory obligation of consignor concerned to generate part and for transporter to generate part B of E-way bill comes into play only in case, where value of consignment exceeds Rs. 50,000/- . Further, it is pointed out that it is very crucial to note that all abovesaid 3 consignments, value of which is below Rs. 50,000/-, consists of different commodities of goods concerned and it is not of same nature and therefore there cannot be any suspicion about conduct of consignor in not generating E-way bill for separate consignments, which consists separate items of goods, value of each which is below Rs.50,000/-. Further counsel for petitioner would also place reliance on stand of taxation department as shown in their official web portal, which is extracted on page 2 of Ext.P7 as question and answer thereto (see page No.26 of paper book of this W.P. (C.)) and same reads as follows : If value of goods carried in single conveyance is more than 50,000/- though value of all or some of individual consignments is below Rs.50,000/- does transporter need to generate e-way bill for all such smaller consignments ? As Rule 138(7) will be notified from future date, hence till notification for that effect comes, transporter needs not generate e-way bill for consignments having value less than Rs.50,000/- even if value of goods carried in single WP(C).No.1918 OF 2020(L) 8 conveyance is more than Rs.50,000/- till said sub-rule is notified. 10. It is pointed out that said stand of department is substantially fully in favour of petitioner, inasmuch as it is made clear that till Rule 138(7) is notified to be brought in force, transporter need not generate e-way bills for consignments having value less than Rs.50,000/-, even if value of goods carried in single conveyance is more than Rs.50,000/- . 11. Per contra, Smt.M.M.Jasmine, learned Government Pleader would argue that said aspect born from page 2 of Ext.P7 may not be relevant inasmuch as provisions contained in Rule 138(7) will not cover facts of this case, since what is envisaged in that sub-rule is inter state supply, whereas in instant case, it is admittedly intra state supply. 12. Further, learned Government Pleader would argue that by virtue of mandatory force of sub-rule (1) of Rule 138, obligation to generate part and part B of e-way bill is fastened on every registered persons, who cause of movement of goods of consignment, value of which exceeds Rs.50,000/- etc. and that mandatory sweep of that provision cannot be permitted to be diluted by act of consignor in having separate consignments, value of each of which is being below Rs.50,000/- and in case, where aggregate value of such consignments causes threshold of Rs. 50,000/-. In such case, authorities concerned are right in taking abovesaid impugned stand as WP(C).No.1918 OF 2020(L) 9 reflected in impugned Ext.P5 detention order. 13. After hearing both sides and after careful evaluation of facts and circumstances of this case, it is seen that value of tax and penalty demanded as per impugned Ext.P5 order is only Rs.20,274/- and adjudication proceedings in pursuance to impugned Ext.P5 detention order has not been finalised as of now in accordance with law. True that some of abovesaid contentions urged by petitioner more particularly, contention based on page 2 of Ext.P7 would really deserve serious consideration at hands of authorities while finalizing adjudication proceedings in pursuance to Ext.P5 detention order. This Court is of view that taking note of nature of course of action now projected before this Court, case is only at stage of detention of goods and vehicle concerned and therefore, this Court is of considered view that abovesaid rival contentions raised by both sides need not be resolved by this Court at this stage of matter. 14. Accordingly, it is ordered that 2 nd respondent shall forthwith release goods and vehicle detained pursuant to impugned Ext.P5 detention order to petitioner on latter furnishing bank guarantee for value of amount of Rs.20,274/- as shown in impugned Ext.P5 detention order. Thereafter, 2 nd respondent will immediately take steps to ensure that adjudication proceedings in pursuance to Ext.P5 detention order are finalized in accordance with law and in that WP(C).No.1918 OF 2020(L) 10 regard, 2nd respondent shall issue notice of hearing to petitioner and will permit petitioner to submit written submissions in matter and will thereafter afford reasonable opportunity of being heard to petitioner and will pass orders finalizing adjudication proceedings in pursuance to Ext.P5 detention order, without much delay, preferably within period of 4 weeks from date of production of certified copy of this judgment. 15. Before finalizing said proceedings, 2 nd respondent should meticulously and effectively consider various contentions urged by petitioner and then pass orders finalizing adjudication proceedings as aforestated. With these observations and directions, above W.P.(C.) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE SKS WP(C).No.1918 OF 2020(L) 11 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF E-WAY BILL NO. 531159891857 DATED 09.01.2020. EXHIBIT P1(A) TRUE COPY OF E-WAY BILL NO. 591159891206 DATED 09.01.2020. EXHIBIT P1(B) TRUE COPY OF E-WAY BILL NO. 571159890364 DATED 09.01.2020 EXHIBIT P1(C) TRUE COPY OF E-WAY BILL NO. 541159896053 DATED 09.01.2020. EXHIBIT P2 TRUE COPY OF ORDER FOR PHYSICAL VERIFICATION/INSPECTION, DATED 10.01.2020 ISSUED BY 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF PHYSICAL VERIFICATION REPORT DATED 14.01.2020 ISSUED BY 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF ORDER OF DETENTION DATED 14.01.2020 ISSUED BY 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF NOTICE DATED 14.01.2020 ISSUED BY 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF LETTER DATED 15.01.2020 ADDRESSED TO 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF RELEVANT EXTRACTS OF FAQS ON GST PORTAL OF GOVERNMENT OF KERALA, AS UPDATED ON 24.03.2018. Bon Cargos Private Limited v. Union of India / Assistant State Tax Officer, Thiruvananthapuram / Deputy Commissioner (Intelligence) Kerala State Gst Department, Thiruvananthapuram