The Hon’ble High Court of Karnataka vide its order dated 23.06.2022 in the matter of M/s Transways India Transport Vs. Joint Commissioner of Commercial Taxes (Appeals – 3), Commercial Tax Officer in Writ Petition No. – 7226 of 2022 (T-Res) held that the order of detention under Section 129 (3) of the CGST Act, 2017 is not sustainable when the diversion of vehicle carrying the goods, was due to human error and it cannot be concluded that the diversion was deliberate as the driver in charge filed an affidavit to that effect, and the intended purchasers also confirmed that they were supposed to receive the said goods.

The present petition has been filed by the Petitioner challenging the orders No. GST.AP.11/2021-22 dated 10.03.2022 & No. JCCT (Vig)/CTO (Vig) – 09/GCH/CR-79/2021-22 dated 13.12.2021.

Facts: –

• That the petitioner is transport operator having a valid GST registration number and was entrusted with the transportation of stainless-steel coils and plates from Mumbai to Bengaluru.
• The lorry in question which belongs to the petitioner was carrying four consignments, out of which two consignments were to be delivered at Peenya Industrial are at Peenya, one consignment at Kalasipalyam and another at S.P. Road cross, Bengaluru.
• The driver of the lorry had to turn towards Peenya Industrial Area from Doddaballapur. However, from Hebbal, the driver of vehicle instead of moving right towards Peenya Industrial Area, took a left turn and moved towards Bommasandra Industrial Area, where the lorry was stopped and checked.
• Further, the driver had all relevant documents, but to move/drive towards Peenya, S.P.Road and new kalasipalyam and not towards Bommasandra Industrial area, so the provisions of Rule 138A and Section 129 of the CGST Act, 2017 were invoked and penalty was imposed by way of impugned order. That the petitioner being aggrieved of the same, has filed the present writ petition.

Petitioner’s Submissions: –

• It was submitted and informed on behalf of the petitioner that the driver of the lorry on 02.12.2021, at about 11 p.m., by mistake took a wrong turn towards Bommasandra Industrial area instead of Peenya Industrial area and before he realized the error, the authorities checked the vehicle and seized the same.
• It was submitted that it was a bona fide mistake and there was no intention to take the goods elsewhere. Further, the driver has given an affidavit to that effect and also the purchasers to whom the consignments had to be delivered have also issued communication, stating that they were to receive the consignments.
• That the authorities ought to have accepted the explanation of the driver and released the vehicle and the goods.

Respondents’ Submissions: –

• On the other hand, it was contended on the behalf of the respondents that diversion was not a human error and was deliberate.
• Further the driver being from Tumkur could not have committed the said mistake and could not have travelled such a long distance without it being a deliberate.
• As the vehicle moved towards Bommasandra Industrial Area, it was moving without valid documents. Thus, prayed for dismissal of Writ Petition

Held: –

• The Hon’ble Court after considering the submissions from the both sides and facts of the case, found that there is no dispute that the driver was carrying required E-way Bill and tax invoices to deliver goods to Peenya Industrial area, Kalasipalyam and S.P.Road.
• The driver instead of moving towards Peenya Industrial area, moved towards Bommasandra Industrial area. Therefore, considering the facts and circumstances of the case, there may be chances of diversion due to human error and it cannot be definitely concluded that the diversion was deliberate when the driver of the vehicle has filed an affidavit explaining the reasons and the intended customers have also confirmed that they were supposed to receive the goods.
• Thereafter, the Hon’ble Court considering the peculiar facts and circumstances of the case found that it is a fit case to set aside the impugned orders passed under Section 107(11) and Section 129(3) of the CGST Act, 2017. 

The Hon’ble Court with the above findings set aside the impugned orders dated 10.03.2022 and dated 13.12.2021 and directed the respondents to release the vehicle and goods detained pursuant to said orders.

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