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No penalty for the failure to generate an E-way bill under Section 129


The introduction of the Goods and Services Tax (GST) in India brought about significant changes in the taxation landscape. One crucial aspect is the requirement for the generation and adherence to E-Way Bills, governed by Section 68 and related rules of the Central Goods and Services Tax (CGST) Act, 2017. This article aims to provide a comprehensive understanding of the implications of E-Way Bill compliance, particularly focusing on the legal aspects and potential penalties associated with non-compliance.

Overview of Section 68:

Section 68 of the CGST Act, 2017 empowers the government to mandate the carrying of prescribed documents and devices for the transportation of goods valued above a specified amount. The documents, as specified under sub-section (1), undergo validation and are subject to verification by proper officers if the conveyance is intercepted.

Definition of "Documents" and "Electronic Record":

Section 2(41) of the CGST Act defines "Document" to include a written or printed record, along with an electronic record as specified in clause (t) of Section 2 of the Information Technology Act, 2000. The latter defines "Electronic record" as data records, images, or sounds stored, received, or sent in electronic form.

Facts and Analysis:

From the relevant sections, it is evident that tax invoices, bills of supply, or delivery challans serve as documents, providing proof of sale and establishing the identities of both the seller and the purchaser. An E-Way Bill, on the other hand, is not categorized as an "electronic record" or a "document." Instead, it is considered a form under GST Rules, 2017.

Rule 138 and Rule 138A:

Rule 138 mandates that every registered person initiating the movement of goods exceeding fifty thousand rupees must furnish information electronically in Part A of FORM GST EWB-01. Rule 138A outlines the documents and devices to be carried by the person-in-charge of the conveyance, including the invoice, bill of supply, or delivery challan, and a copy of the e-way bill or its number.

Analysis of Section 129:

Section 129 empowers authorities to detain or seize goods, conveyances, and related documents if transported or stored in contravention of the Act. However, the absence of an E-Way Bill may lead to a contravention of Rule 138 and 138A rather than a direct contravention of the Act.

Section 164 and Penalties:

Section 164 authorizes the government to make rules for carrying out the provisions of the Act. The power to make rules includes the authority to impose penalties, not exceeding ten thousand rupees, for contraventions. In the context of E-Way Bill compliance, a contravention may result in a penalty of Rs. 10,000.

Final Conclusion:

In conclusion, the absence or failure to generate an E-Way Bill may be viewed as a technical mistake rather than a contravention of the CGST Act itself. Penalties are applicable under Rule 138 and 138A, and seizure of goods or conveyance under Section 129 should be deemed unauthorized and illegal in cases where documents such as tax invoices or bills of supply are present. Businesses and professionals must ensure strict adherence to E-Way Bill regulations to avoid potential penalties and legal complications in their operations.

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