JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. Vijay Patel for learned advocate Mr. Rahil P. Jain for the petitioner and learned advocate Ms. Hetvi H. Sancheti for the respondents. 2. Having regard to the controversy involved, which is in a narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing. 3. Rule returnable forthwith. Learned advocate Ms. Hetvi H. Sancheti waives service of notice of rule on behalf of the respondents. 4. By this petition, the petitioner has challenged the order dated 28.11.2022 passed under Section 107 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as “the CGST Act”) whereby, the respondent No. 1 has confirmed the order dated 03.03.2022, imposing penalty of Rs.11,08,150/- under Section 129(1) of the GST Act. 5. The petitioner company is into the business of manufacturing of various items of rubber and is also having registration under the GST Act. The petitioner had imported material from China for the purpose of its business after payment of Integrated Goods and Service Tax (IGST) on 14.12.2021. 5.1 The petitioner imported Rubber Conveyor Belt and allied materials, and obtained bill of lading and certificate of origin from the Custom Authorities who after inspection of the goods gave such clearance. The petitioner after clearance of the goods by the Custom Authority was transporting its goods from the Port at Mundra to godown at Ahmedabad by generating Part-A E-waybill on 01.03.2022 at 4:05 p.m. It is the case of the petitioner that the Part-B of the E-waybill could not be generated due to technical glitches on the portal and without generation of Part-B of the E-waybill as prescribed in Form GST EWB-01, the petitioner transported the goods in conveyance being GJ-12-BV-7132. 5.2 The respondent No. 1-Deputy Commissioner (AE) CGST, Kutch, intercepted the conveyance at Padan National Highway No. 41 and issued Form GST MOV-01 and GST MOV-02, after inspection of the goods and the conveyance, passed an order dated 01.03.2022 of detention in Form GST MOV-06 on the same day. 5.3 The respondent No. 1 issued a show cause notice dated 03.03.2022 in Form GST MOV-07 calling upon the petitioner to show cause as to why the penalty of Rs.11,08,150/- should not be imposed on the petitioner and he was further directed to appear in-person or through authorized representative on 04.03.2022. 5.3 The respondent No. 1 issued a show cause notice dated 03.03.2022 in Form GST MOV-07 calling upon the petitioner to show cause as to why the penalty of Rs.11,08,150/- should not be imposed on the petitioner and he was further directed to appear in-person or through authorized representative on 04.03.2022. 5.4 It is the case of the petitioner that the goods in question were required by the petitioner for manufacturing activity. The petitioner deposited the amount of penalty i.e. Rs.11,08,150/- as stated in show cause notice in Form GST MOV-07. The respondent No. 1, therefore, passed the order in Form GST MOV-09 dated 03.03.2022, confirming the penalty to the tune of Rs.11,08,150/-. 5.5 The petitioner being aggrieved by the order passed in Form CGST MOV-09 preferred appeal under Section 107 of the CGST Act and prayed for deletion of penalty imposed under Section 129(1) (a) of the CGST Act on the ground that there was no contravention of any of the provisions by the petitioner. 5.6 However, the First Appellate Authority by the impugned order dated 28.11.2022 confirmed the order-in-original, imposing penalty of Rs.11,08,150/-. 5.7 Being aggrieved, the petitioner has preferred this petition. 6. Learned advocate Mr. Vijay H. Patel for the petitioner submitted that the petitioner had imported the goods after payment of IGST and was transporting the goods from the Port at Mundra to the place of manufacturing of the petitioner and only because there was a non-compliance of generation of Part-B of the E-waybill, which is procedural in nature, the penalty to the tune of Rs.11,08,150/- could not have been levied upon the petitioner by the respondent authority. 6.1 It was submitted that the goods in question were neither sold or purchased by the petitioner and the same was being transported after clearance by the Custom Authorities from the Port at Mundra and therefore, there was no intention on the part of the petitioner to evade payment of any tax under the provisions of the CGST Act. It was submitted that only error/mistake/negligence on the part of the petitioner was not generating the Part-B of the E-waybill due to the technical glitches on the portal. 6.2 Learned advocate Mr. It was submitted that only error/mistake/negligence on the part of the petitioner was not generating the Part-B of the E-waybill due to the technical glitches on the portal. 6.2 Learned advocate Mr. Vijay Patel for the petitioner invited the attention of the Court to page No. 57 of the paper-book to point out that the Part-A of the E-waybill was generated on 01.03.2022 at 04:05 p.m. and the goods were intercepted at 06:05 p.m. and thereafter, the Part-B was generated on 06:51 p.m. as placed on record at Page No. 58 of the paper-book. It was, therefore, submitted that there was no intention on the part of the petitioner to transport the goods without complying with the provisions of the CGST Act and Rules framed thereunder. 6.3 In support of his submissions, reliance was placed on the Circular No. 64/38/2018 dated 14.09.2018, whereby, the Central Board of Indirect Taxes and Customs (CBIC) has provided for modification of the procedure for interception of conveyance for inspection of the goods in movement, and detention, release and confiscation of such goods and conveyances, as clarified in Circular Nos. 41/15/2018-GST dated 13.04.2018 and 49/23/2018-GST dated 21.06.2018. It was submitted that as per the Circular No. 64/38/2018, the CBIC has stipulated that in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, proceedings under Section 129 of the CGST Act may not be initiated and certain examples are also given in Para 5 of the said Circular. 6.4 It was submitted that in the facts of this case, the petitioner along with the goods which were being transported from the Port to the place of manufacturing of the petitioner, the conveyance was having the documents containing Part-A of the e-way bill as well as the documents of bill of lading, invoices etc. to show that the petitioner had imported the goods in question from China. It was, therefore, submitted that there was no intention on the part of the petitioner to violate any of the provisions of Section 129(1)(a) of the Act. It was, therefore, submitted that the respondent authorities ought to have considered the facts of the case and could not have levied any penalty upon the petitioner. 6.5 Learned advocate Mr. It was, therefore, submitted that there was no intention on the part of the petitioner to violate any of the provisions of Section 129(1)(a) of the Act. It was, therefore, submitted that the respondent authorities ought to have considered the facts of the case and could not have levied any penalty upon the petitioner. 6.5 Learned advocate Mr. Patel in support of his submissions referred to and relied upon the decision of the Hon’ble Kerala High Court in case of M/s. T.P. Metals & Roofings vs. Assistant Tax Officer (INT) & Ors. WP (C) No. 26645 of 2021 on 30.07.2024. It was submitted that in the similar facts the Hon’ble Kerala High Court held that the respondent authorities could not have levied the penalty as contemplated by the provisions of Section 129(1)(a) or Section 129(1) (b) in cases where only minor discrepancies are noticed and such penalty can be imposed only for violations which may lead to evasion of tax or where the transport was with an intent to evade tax or in cases of repeated violations. It was, therefore, submitted that in the facts of the case, the impugned orders are liable to be quashed and set aside. 7. Per contra, learned advocate Ms. Hetvi H. Sancheti for the respondents submitted that, admittedly, the petitioner has not produced Part-B of the e-way bill which contains the details of the conveyance and the details of the transporters who were transporting the goods of the petitioner. It was therefore submitted that only Part-A of the e-way bill cannot be considered as e-way bill and compliance of the Rule 138 of the CGST Rules. It was further submitted that the respondent authorities have recorded the findings in the impugned orders to the effect that there was no e-way bill along with the goods and therefore, there is a clear violation of the provisions of the Act and Rules and the penalty was rightly imposed upon the petitioner by invoking the provisions of Section 129(1)(a) of the Act. 7.1 It was further submitted that the petitioner had paid the penalty voluntarily in response to the show cause notice in compliance of the provisions of Sub-Sections 3 and 4 of the Section 129 of the CGST Act and therefore, the petitioner now, cannot agitate for levy of the penalty which was paid at the relevant point of time on 03.03.2022. 7.2 Learned advocate Ms. 7.2 Learned advocate Ms. Sancheti in support of her submissions, preferred to and relied upon the following averments made by the respondent Nos. 1 and 2 in the affidavit-in-reply, which are reproduced as under: “As regards the above contention of the Petitioner, it is submitted that as per the ‘Loaded Container Gate Out’ Slip issued by the Honeycomb Logistics Pvt. Ltd. (CFS), the subject vehicle carrying container has started transportation of the subject detained goods out of the CFS on 01.03.2022 at 02.51 pm, Part-A of the E-way Bill was generated on 01.03.2022 at 04.05 pm, thus, it appears that even Part-A of the E-way bill was also generated after pretty long time after the subject vehicle started transporting the goods. The vehicle was detained by the CGST Officers on 01.03.2022 at 06.05 pm, till then Part-B of the e-way bill was not generated. Part-B of the e-way bill was generated on 01.03.2022 at 06.51 pm i.e. after the subject vehicle was detained and MOV-01 was issued to the driver. Thus, it appears that the transporter has generated part-B of the e-way bill after the vehicle/goods were detained so as to make good the lapse on their part under the pretext that part-B could not be generated due to technical glitches on GST portal. In support of his claim about technical glitches, the Petitioner has not produced any proof in form of email correspondence or any correspondence made or complaint lodged with GST E-way Bill Portal Authority informing or complaining about the technical glitch or non-functioning of the portal at the relevant time. As per Explanation-2 to Rule 138 (3) of the CGST Rules, 2017, without generation of Part-B, an E-way Bill is not considered as a valid E-way Bill for movement of goods. The provisions of Section 129 of the CGST Act, 2017 clearly prescribes that Notwithstanding anything contained in the Act, where any person transports any goods in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods, are liable to detention or seizure and shall only be released on payment of penalty as provided under Section 129. It is very clear that the subject detained goods and vehicles were in the process of transportation in contravention of the provisions of Section 68 of the CGST Act, 2017 read with Rule 138A of the CGST Rules, 2017 and the provisions of section 129 of the CGST Act are appropriately to be invoked. Hence, the penalty imposed under MOV-09 dated 0303.2022 was legal, proper and appropriate. Further, as mentioned as per the provisions of Section 129 of the CGST Act, 2017 when there is a breach of provisions of the said Act and the rules made thereunder during the transit of goods, the penalty under Section 129 is to be levied whether the intention of evasion of tax of the concerned person is present or not. Therefore, the contention of the Petitioner that proper tax in form of IGST have already been paid on the subject goods and there was no intention to evade payment of tax is not tenable and acceptable. 6. With respect to Para J, it is to submit that the plea of the Petitioner that as per the Board’s Circular No. 64/38/2018-GST dated 14.09.2018, in case of technical errors in the documents accompanying the goods, provisions of Section 129 of the GST Acts may not be resorted to but instead goods may be released on payment of nominal penalty under Section 125 of the GST Acts, it is submitted that goods in transit found without e-way bill is not covered in the situations described in Para 5 of the said Circular. Rather, it is specifically mentioned in the said Para 5 that when any consignment of goods is accompanied with an Invoice and e-way bill, then only in the circumstances/situations described in the said para, proceedings under Section 129 of the CGST Act may not be initiated. Rather, it is specifically mentioned in the said Para 5 that when any consignment of goods is accompanied with an Invoice and e-way bill, then only in the circumstances/situations described in the said para, proceedings under Section 129 of the CGST Act may not be initiated. It is very clearly mentioned in Para 3 of the said Circular “Further, it may be noted that the non-furnishing of information in Part B of FORM GST EWB-01 amounts to the e-way bill becoming not a valid document for the movement of goods by road as per Explanation (2) to rule 138(3) of the CGST Rules, except the case where the goods are transported for distance of upto fifty kilometres within the State or Union territory to or from the place of business of the transporter to the place of business of the consignor or consignee as the case may be.” Thus, in the instant case, non-generation of Part-B of the e-way bill rendered thee-way bill becoming not a valid document for movement of the goods and therefore, the consignment to be considered as in transit without an e-way bill. Therefore, as per Para-4 of the said Circular which is “It is clarified that in case a consignment of goods is accompanied by an invoice or any other specified document and not an e-way bill, proceedings under section 129 of the CGST Act may be initiated.” the proceedings initiated by the department under Section 129 was proper and legal.” 7.3 Referring to the above averments, it was submitted that no interference is required to be made by this Court in the impugned orders of levy of penalty in view of the fact that the petitioner has voluntarily accepted the amount of penalty proposed in the show cause notice dated 03.03.2022 issued in Form GST MOV-07 and therefore, the respondent authorities in absence of any agitation or objection filed by the petitioner were not supposed to decide the justification for levy of penalty. 8. Considering the rival submissions made by learned advocates for the respective parties, it appears that it is not in dispute that in response to the show cause notice in Form GST MOV-07 dated 03.03.2022, the representative of the petitioner without any demur accepted the notice and paid the amount of Rs.11,08,150/- as penalty voluntarily without any objections. 8. Considering the rival submissions made by learned advocates for the respective parties, it appears that it is not in dispute that in response to the show cause notice in Form GST MOV-07 dated 03.03.2022, the representative of the petitioner without any demur accepted the notice and paid the amount of Rs.11,08,150/- as penalty voluntarily without any objections. The respondent No. 1 was therefore justified in passing the impugned order-in-original in Form GST MOV-09 for levy of the penalty of Rs.11,08,150/- upon the petitioner for violation of the provisions of Section 129(1) of the CGST Act. 8.1 However, the fact remains that the petitioner had no intention to evade the tax as the petitioner was transporting the goods in question from the Port after clearance of the same by the Custom Authorities to the place of the manufacture. It is also emerging from the record that the petitioner had generated Part-A of the e-way bill and only the Part-B of the e-way bill was not accompanying the goods in the conveyance, when the same were intercepted at 6:05 p.m. on 01.03.2022. 8.2 Moreover, it is also not in dispute that the Part-B of the e-way bill was generated at 6:51 p.m. on 01.03.2022 and as such it was a minor lapse on the part of the petitioner for not generating Part-B of the e-way bill and for that the petitioner cannot be saddled with the huge penalty of Rs.11,08,150/-. 8.3 Section 129(1) of the CGST Act, reads as under: “129. Detention, seizure and release of goods and conveyances in transit. (1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released: (a) on payment of the applicable tax and penalty equal to one hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty. (b) on payment of the applicable tax and penalty equal to the fifty per cent. of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty. (c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods.” 8.4 On perusal of the above provisions, in order to see that the petitioner has violated the provisions of Section 129 which starts with non-obstante clause, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, then such goods are liable for detention or seizure and after detention and such seizure, the same can be released on payment of penalty as described in clause (a) and (b) of the Sub-Section 1 of Section 129. On perusal of the clauses (a) and (b), the penalty which is leviable would be equal to two hundred per cent of the tax payable on the goods and in case of exempted goods, on payment of an amount equal to two per cent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such penalty. 8.5 In the facts of the case, as the petitioner has paid the penalty pursuant to the notice after detention or seizure of the goods in question in response to the notice issued as per Sub-Section 3 of the Section 129 of the CGST Act, the petitioner was liable to pay the penalty equivalent to two hundred per cent of the tax payable or however, in the facts of the case, as the IGST was already paid on the goods, the petitioner was subjected to the penalty of two hundred per cent of the tax paid, but, at the same time, considering the fact that the contravention of the Rule 138 is venial and technical as the goods in question were not accompanying with the Part-B of the e-way bill, the penalty as prescribed in Clause (a) of Section 129(1) of the CGST Act is required to be modified and the lesser penalty of Rs.25,000/- as stated in the said Clause would justify the contravention of the Rule 138 of the Rules committed by the petitioner for not having Part-B of the e-way bill in the facts of the case. 9. The impugned order of penalty passed by Respondent No. 1 therefore stands modified to Rs.25,000/- instead of Rs.11,08,150/- levied and confirmed by the respondent authorities. 10. Rule is made absolute to the aforesaid extent. No order as to costs.