For movement of goods across India, GST law provides a mechanism for generation of e-way bill (EWB) number electronically. E-way bill is a document/number to be carried by the person-in-charge of conveyance.
The provisions related to the generation and non- applicability of e-way bill has been laid down in GST law. The same are updated from time to time via issue of notification by CBIC.
As such, whenever a taxable person causes movement of the goods, decisions are to be made for disclosure of classification, rates of the goods and accordingly charge GST on the same. Hence, for causing movement of goods, e-way bill is required to be generated, except the exempt cases provided by the law.
Legal references:
Section 68 empowers proper officer to intercept any vehicle & require person-in-charge to produce the documents for verification. Section 68 of the CGST Act read with rules specifies that tax invoice/ challan/ bill of supply/ delivery challan as per law should be accompanied with the consignment of goods and that e-way bill as per rule 128 should also be generated.
Further, section 129 of CGST Act, which begins with a non obstante clause empowers the officers to detain and seize the goods, documents and the conveyance, if the goods are transported or stored during the transit in contravention of the provisions of GST Act or the rules made there under. In short, section 129 vests overriding power for detention or seizure, where any person contravenes the law while transporting the goods.
Now, let’s comprehend the situation where a registered person classified his goods under categories & the same is falling under the e-way bill exemption list. Accordingly, he transported the goods without e-way bill in the view exemption statutorily granted.
Let us consider a situation in which during transit, inspecting authority intercepted the goods and want to detain/ seize the goods, on the ground the goods shall be classified under different head & e-way is mandatory required with the new classification, by using the powers of Section 68 & Section 129. The matter under debate is whether the inspecting authority is empowered to change the declaration made regarding the details of goods covered by e-way bill?
It is to be noted that the law only empowers assessing authority to comment on the exigibility of the goods. To the best the inspecting authority can alert the assessing authority to initiate the proceedings for assessment.
There are two important judgments which support the above situations:
- First: Madras High Court, wherein the Hon’ble Court observed that the process of detention of goods as provided under Section 129 of GST law cannot be resorted to when the dispute is bonafide, especially, concerning the exigibility of tax and, more particularly, the rate of tax.
- Second: A similar issue came up for consideration before Hon’ble Kerala High Court in the decision reported in 2018 (1) TMI 1503 wherein the Hon’ble Kerala High Court held that in such cases at best the inspecting authority (inspecting squad officer) can alert the assessing authority to initiate the proceedings for assessment.
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