A single Bench of Calcutta High Court has directed to serve show cause notice for confirmation of penalty finding that transporting own machinery from one place to another for execution of particular work would not be liable to Goods and Service Tax.
DRB Infrastructure Pvt. Ltd. is a construction Company who was entrusted with sub-contract for earth excavation, embankment/subgrade work and drain work on the four/six lane access-controlled expressway. In order to carry out the said work, petitioner transported its own machinery from Arunachal Pradesh to Jammu by two trailers through a third-partyconsignment. The said trailers were intercepted by respondent asking the driver of the vehicle to produce waybill, tax invoice and delivery challans. The driver could produce the 2 e-way bill but failed to produce the tax invoice and delivery challans.
Subsequently, the driver was informed by the adjudicating authority that the trailer can only be released if the petitioner pays a penalty .The petitioner referring to Circular No.80/54/2018-GST dated 31st December, 2018 and taking me to clause No.13.2 of the said Circular, said that the supply of such goods did not constitute a supply and would not be liable to GST.
Rima Sarkar on behalf of the petitioner submitted that, since the petitioner was transporting its own machinery from one place to another for execution of a particular work, no GST would be payable in respect of the said goods. He further submitted that the respondent did not communicate the order to the person in charge of the convenience and had illegally detained the trailers concerning loss in business of the petitioner.
Subir Kumar Saha, on behalf of the state submitted that, on interception of a vehicle, it was the duty of person in charge of a convenience to produce the invoice or bill or supply or delivery challans as the case may be and a copy of the e-bill or E-way bill number either physically and or electronic mode.
He further submitted that, as there was no sold or supplied goods, the goods could only be transported from one place to another with a delivery challan in lieu of Tax invoice.
A single Bench of, Justice Bibek Chaudhuri disposed the writ petition holding that,
“In view of such submission and considering the fact that the learned Advocate for the respondents has served a copy of the show cause notice to the learned Advocate for the petitioners, the petitioners are directed to submit a reply to the adjudicating authority within 3 days from this date and the adjudicating authority thereupon shall adjudicate as to whether that petitioner is liable to pay any penalty or not after giving opportunity to the petitioners or their authorized representative of hearing within a fortnight thereafter.”
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