# M/S KY Tobacco Works Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Writ Tax No. 574 of 2019
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-ky-tobacco-works-pvt-ltd-v-state-of-u-p-ors-51905
- **Pages:** 3

## Headnote

2017-Section 129(3) -Petitioner is aggrieved
by the seizure order, order imposing penalty and
Appellate order-all relevant documents were
present in the vehicle and the goods matched the
invoice and the e-way bill-goods detained on the
St.ment of the driver- that he was transporting
the goods for the second time with same
documents-St.ment of driver not provided-no
burden of proof been discharged by the
respondents-mensrea not proved

W.P. allowed. (E-9)

List of Cases cited:

M/s Anandeshwar Traders Vs St. of U.P. & ors.
reported in (2021 U.P.T.C. [Vol.107]-421)

## Text

1902 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The Revision lacks merit and the
same is hereby dismissed.
----------
(2024) 5 ILRA 1902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 574 of 2019

M/S KY Tobacco Works Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mrs. Pooja Talwar

Counsel for the Respondents:
C.S.C., A.S.G.I.

Uttar Pradesh Goods and Service Tax Axt,
2017-Section 129(3) -Petitioner is aggrieved
by the seizure order, order imposing penalty and
Appellate order-all relevant documents were
present in the vehicle and the goods matched the
invoice and the e-way bill-goods detained on the
St.ment of the driver- that he was transporting
the goods for the second time with same
documents-St.ment of driver not provided-no
burden of proof been discharged by the
respondents-mensrea not proved

W.P. allowed. (E-9)

List of Cases cited:

M/s Anandeshwar Traders Vs St. of U.P. & ors.
reported in (2021 U.P.T.C. [Vol.107]-421)

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Mrs. Pooja Talwar, learned
counsel for the petitioner and Sri Rishi
Kumar, learned Additional Chief Standing
Counsel appearing for the respondents.

2. The is a writ petition under Article
226 of the Constitution of India wherein the
writ petitioner is aggrieved by the seizure
order dated August 13, 2018, the order dated
August 14, 2024 imposing penalty under
Section 129(3) of the Uttar Pradesh Goods
and Service Tax Act, 2017 and the appellate
order dated January 8, 2019.

3. Mrs. Pooja Talwar, learned counsel
for the petitioner submits that the relevant
documents were present in the vehicle and
the goods matched invoice and the e-way
bill. The sole ground on which the goods
were detained and seized and penalty order
was passed, was the statement supposedly
given by the Driver of the vehicle who
submitted that he was transporting the goods
for the second time with the same
documents. She further submitted that the
primary documents being MOV-01 wherein
the statement of the Driver is recorded has
never been provided to the petitioner.

4. Upon such query being put by the
Court, counsel appearing on behalf of the
respondents submits that he tried to obtain
MOV-01 and the statement of the Driver.
However, it appears that the Officer
concerned has not been able to provide the
MOV-01 till date, in spite of several requests
made to him. Today, the counsel appearing
on behalf of the respondents has provided a
sheet of paper that is supposedly the
statement given by the Driver. However, the
same is not accompanied by the MOV-01.

5. In light of the same, this document
is of very little evidentiary value.

6. Mrs. Pooja Talwar, counsel
appearing on behalf of the petitioner has
placed reliance on a judgement of a
coordinate Bench of this Court authored by
Hon'ble Saumitra Dayal Singh, J., in M/s
5 All. M/S KY Tobacco Works Pvt. Ltd. Vs. State of U.P. & Ors.
1903
Anandeshwar Traders v. State of U.P. and
Others
reported
in
(2021
U.P.T.C.
[Vol.107]-421), wherein his Lordship has
held as follows :-

"10. Even if the dealer does not
cancel the e-way bill within 24 hours of its
generation, it would remain a matter of
inquiry to determine on evidence whether an
actual transaction had taken place or not.
That would be subject to evidence received
by the authority. As such it was open to the
seizing authority to make all fact inquiries
and ascertain on that basis whether the
goods had or had not been transported
pursuant to the e-way bills generated on
24.11.2019. Since the petitioner-assessee
had pleaded a negative fact, the initial onus
was on the assessing authority to lead
positive evidence to establish that the goods
had been transported on an earlier
occasion. Neither any inquiry appears to
have been made at that stage from the
purchasing dealer or any toll plaza or other
source, nor the petitioner was confronted
with any adverse material as may have
shifted the onus on the assessee to establish
non-transportation of goods on an earlier
occasion.

11. The presumption could not be
drawn on the basis of the existence of the eway bills though there did not exist evidence
of actual transaction performed and though
there is no statutory presumption available.
Also, there is no finding of the assessing
authority to that effect only. Mere assertion
made at the end of the seizure order that it
was clearly established that the assessee
had made double use of the e-way bills is
merely a conclusion drawn bereft of
material on record. It is the reason based on
facts and evidence found by the assessing
authority that has to be examined to test the
correctness of the order and not the
conclusions, recorded without any material
on record."

7. In view of the ratio laid down in the
above judgement, it is clear that it is the duty
of the authorities to ascertain that whether
the double movement of the goods has taken
place actually. In the present case, no such
burden of proof has been discharged by the
respondents.

8. From the documents available, it is
clear that the respondent authorities have not
been able to indicate or prove any mens rea
for evasion of tax.

9. In light of the same, the impugned
orders dated August 13, 2018, August 14,
2024 and the appellate order dated January
8, 2019 are quashed and set aside.
Consequential reliefs to follow.

10. The amount of penalty and security
that has been deposited by the petitioner to
be refunded within a period of six weeks
from date.

11. Accordingly, this writ petition
stands allowed.

12. A general caution is required to be
given to the authorities in respect of the nonassistance and non-providing the relevant
documents to the counsel appearing on
behalf of respondent authorities resulting in
failure of the department's lawyers to defend
the case of the department in an effective
manner. It is to be noted that this Court on
several occasions has passed orders in
favour of the assessee as the department has
not able to defend its case by timely
providing relevant documents to the State
counsel.
1904 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The Commissioner, State Tax,
U.P. is directed to take note of this fact and
ensure that in future proper assistance is
provided to the counsel appearing on
behalf of the State/respondents. Registrar
Compliance is directed to communicate
this order to the Commissioner, State Tax,
U.P. forthwith.
----------
(2024) 5 ILRA 1904
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 1368 of 2023

M/S Kumar Construction ...Petitioner
Versus
Commissioner of Central Excise (Appeals),
CGST Bhawan , Noida ...Respondents

Counsel for the Petitioner:
Sri Rajneesh Shukla, Ms. Riya Soni

Counsel for the Respondents:
Sri Parv Agarwal

Finance Act, 1994- Section 85-Appellate
order impugned-Appeal dismissed that the same
was time barred-filed beyond the period of 85
days-power of sec 5 of Limitation Act will be
available only if extended to special statuteFinance Act is a self-contained code by itself-with
inbuilt
mechanism-impliedly
excluded
the
application of the Limitation Act.

W.P. dismissed. (E-9)

List of Cases cited:

1. Jai Hind Bottling Company (P) Ltd. Vs
Commissioner
(Appeals)
Central
Excise,
Allahabad 2002(146) ELT 273 (All.)

2. Pioneer Corporation Vs Union of India
2016(340) ELT 63 (Del)
3. Singh Enterprises Vs C.C.E., Jamshedpur
2008(221) ELT 163 (S.C.)

4. Commissioner of Customs and Central Excise
Vs Hongo India Private Limited & anr. (2009) 5
SCC 791

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Ms. Riya Soni, learned
counsel appearing on behalf of the petitioner
and Mr. Parv Agarwal, learned counsel
appearing on behalf of the respondents.

2. This is a writ petition under Article
226 of the Constitution of India wherein the
writ petitioner is aggrieved by the order
dated September 20, 2023 passed by the
appellate authority that is the Commissioner
of Central Excise (Appeals), Noida under
Section 85 of the Finance Act, 1994
(hereinafter referred to as the 'Finance
Act').

3. By the aforesaid order, the appellate
authority had dismissed the appeal filed by
the petitioner on the ground that the same
was time barred as it was filed beyond the
period of 85 days. In paragraphs 6.1 to 6.7
of the aforesaid order, the appellate
authority has clearly pointed out that the
petitioner has received the order in original
on January 17, 2023 whereas the appeal was
filed on June 9, 2023, that is, after a delay of
85 days beyond the limitation prescribed
under the Act.

4. Upon a perusal of the memo of
appeal filed by the petitioner, it is clear that
the order was communicated on January 17,
2023, as admitted by the petitioner itself.
The petitioner has explained the delay
stating that the delay was caused due to the
ignorance of authorised representative/legal
counsel and also because the petitioner
suffered with medical emergency caused by