The Rule does not prescribe that the dealer must necessarily cancel the e-way bill if no transportation of the goods is made within 24 hours of its generation. It certainly does not provide any consequence that may follow if such cancellation does not take place. The order passed by the proper authority under Section 129(3) of the Act is found to be perverse and is set aside.
Section 107 of the CGST Act, 2017— Appeal --- Additional evidence during Appeal---The petitioner challenged the appellate authority order dated 3.12.2019, whereby demand of tax and penalty has been confirmed. The petitioner goods were intercepted, which were accompanied by tax invoices, e-way bills and Bilty. The respondent alleged reuse of the e-way bills but in the final order u/s 129(3), no finding came to be recorded. In the Appeal, certain additional evidence has been put up by the respondent. The appeal authority confirmed demand on the ground that since the goods were not being transported immediately upon preparation of the e-way bills, the same should have been cancelled. Since the e-way bills were not cancelled and the transportation of the goods commenced four days thereafter, it has been assumed that the said e-way bills had been reused. The petitioner counsel submitted that Rule 138(9) does not provide either automatic cancellation of e-way bills or cancellation of e-way bills, in case, the goods are not transported within 24 hours of its generation. Since transportation commenced after four days, it does not lead to second use of e-way bills. The counsel relying the decision of the Supreme Court in the case of Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors., submitted that the right to lead additional evidence at the stage of appeal has been granted to the appellant only. The court observed that the Rule does not prescribe that the dealer must necessarily cancel the e-way bill if no transportation of the goods is made within 24 hours of its generation. The initial onus was on the assessing authority to establish that the goods had been transported on an earlier occasion. The court further observed that Rule 112 does not allow for additional evidence to be led at the instance of the respondent in the appeal. The appeal authority had no jurisdiction to examine fresh evidence at the behest of the revenue to support original order.
Held that:- The Hon’ble High Court set aside the order dated 3.12.2019. Further directed that any amount that may have been deposited by the petitioner-assessee, may be returned to it, in accordance with law.