ASHOK Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This intra Court appeal at the instance of the department is directed against the order dtd. 1/3/2022 in W.P.A. No.11085 of 2021. In the said writ petition, the respondent herein challeged the order passed by the Joint Commissioner (Appeal), CGST and CX, Kolkata Appeal - I Commissionerate dtd. 18/3/2021. The said appeal filed before the Joint Commissioner was directed against the order of demand of tax and penalty in Memo dtd. 11/9/2019 issued by the Assistant Commissioner of State Tax, Durgapur Range and summary of order under reference dtd. 11/9/2019 passed by the Assistant Commissioner of State Tax, Kolkata South.

(2.) The learned single Bench while noting the fact found that the detention of the vehicle along with the goods and the demand of tax and penalty not to be justified on the ground that the eway bill, which was being carried in the vehicle transporting the goods had expired on the midnight of 8/9/2019 and the goods were being transported on 9/9/2019 and the vehicle was intercepted at 1.30 p.m.(noon) and according to the writ petitioner the vehicle transporting goods had broken down and on account of which, there was delay and there was no willful intention to evade payment of tax. The learned single Bench was convinced with the factual position and has disposed of the writ petition by setting aside the order dtd. 11/9/2019 as well as the order of the appellate authority dtd. 18/3/2021 and consequently held that the respondent /writ petitioner will be entitled to get refund of penalty and tax paid on protest subject to compliance of all legal formalities. The department is aggrieved by such order. Hence, this appeal.

(3.) The learned counsel appearing for the appellant would submit that neither before the appellate authority nor in the pleadings in the writ petition, the respondent had stated anything about the vehicle being broken down or that nonextension of the validity of the e-way bill was not deliberate and willful but due to the circumstances as stated. When such was the factual position, the learned single Bench ought not to have allowed the writ petition by accepting the said argument, which was placed for the first time when the writ petition was moved before the Court.