Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946 WA NO. 716 OF 2024 AGAINST THE JUDGMENT DATED 18.03.2024 IN WP(C) NO.7720 OF 2024 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:
M/S. SHRI COIMBATORE JEWELLERS INDIA PRIVATE LIMITED, 63-A, 1ST AGRAHARAM, SALEM, REPRESENTED BY ITS MANAGING DIRECTOR K R PREMNATH, PIN – 636001 BY ADVS.
SRI.AJI V.DEV SRI.ALAN PRIYADARSHI DEV SRI.K.C.MOHANDAS SRI.S.SAJEEVAN RESPONDENTS/RESPONDENTS:
1 THE ASSISTANT STATE TAX OFFICER, SQUAD NO.V, STATE GST DEPARTMENT, PALAKKAD, PIN – 678001 2 THE JOINT COMMISSIONER (APPEALS), STATE GST DEPARTMENT, STATE GST COMPLEX, POOTHOLE, THRISSUR, PIN – 680004 3 THE ENFORCEMENT OFFICER SQUAD NO.1, SGST DEPARTMENT, STATE GST BHAVAN, BEHIND CIVIL STATION, PALAKKAD, PIN – 678001 4 THE COMMISSIONER OF STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM, PIN - 695002
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WA No.716 of 2024 BY SR.GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WA No.716 of 2024 JUDGMENT Dr. A.K.Jayasankaran Nambiar, J.
This Writ Appeal is preferred against the judgment dated 18.03.2024 of the learned Single Judge in WP(C). No.7720 of 2024.
2. The brief facts necessary for the disposal of the Writ Appeal are as follows:
The appellant herein a private limited company is engaged in the business of jewellery. A consignment of jewellery worth Rs.58,21,206/- was intercepted by the respondents as it was not accompanied by the relevant documents as mandated under the provisions of the Central Goods and Services Tax Act/State Goods and Services Tax Act, 2017 (hereinafter referred to as the “CGST/SGST Act”) and the Rules. The jewellery items were therefore seized and an order was passed determining tax and penalty. The appellant remitted the tax and penalty, and consequently, the ornaments that were seized were released to the appellant by Ext.P5 order dated 18.12.2017. Aggrieved by Ext.P5 order, the appellant preferred an appeal two years later, which came to be rejected on the ground of delay, vide Ext.P12 order.
Without impugning the said appellate order, the appellant approached this Court through the Writ Petition aforementioned on the specious contention that he had erroneously preferred an appeal against Ext.P5
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WA No.716 of 2024 order dated 18.12.2017 whereas he ought to have insisted on an adjudication order without remitting the demanded tax and penalty, in which event the respondents would have had to pass an order as mandated under Section 129 of SGST Act, and thereafter, he could have challenged that order before the Appellate Authority.
3. The learned Single Judge who considered the Writ Petition found no substance to entertain the Writ Petition on the prayers aforementioned and consequently, dismissed the Writ Petition, inter alia, on the ground of delay in approaching this Court.
4. Before us, it is the contention of Sri. Aji V. Dev, the learned counsel for the appellant that the order against which he had preferred an appeal (Ext.P5) cannot be said to be an order contemplated under the statute for there was no formal adjudication by the authorities at first instance. It is his submission therefore that the appeal preferred against Ext.P5 order was not maintainable, and hence the respondents have to now pass a final order as envisaged under Section 129 against which alone he needs to pursue his appellate remedy if need be.
5. We are afraid, we cannot accept the submissions of the learned counsel for the appellant. At the time of seizure of the goods by the authorities under the CGST/SGST Act, there was an option for the appellant to either pay the amounts demanded and avoid an
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WA No.716 of 2024 adjudication or to contest the seizure and insist on an adjudication order. For reasons best known to him, he chose to make the payment and consequently, Ext.P5 order was passed releasing the goods to him by making it clear that in view of the payment the authorities were not proceeding against him for determination of any tax and penalty. If the appellant had a case that the payment was a mistake, he should have preferred an application for a refund of the tax/penalty paid by him and sought for an adjudication on the refund application. On the contrary, he chose to prefer an appeal against Ext.P5 order which was actually in his favour, and thereafter, suffered a dismissal of an appeal at the hands of the Appellate Authority. For this curious predicament, we find that the appellant is solely to blame. At this stage of the proceedings, where this appeal is filed more than 7 years after the release of the goods to the appellant, we see no reason to take a view different from that of the learned Single Judge, who in our view rightly dismissed the Writ Petition.
The Writ Appeal fails and is accordingly dismissed.
Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- SYAM KUMAR V.M.
JUDGE mns