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.
MONDAY, THE 8TH DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 WA NO. 429 OF 2024 AGAINST THE JUDGMENT DATED 19.02.2024 IN WP(C) NO.1760 OF 2024 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:
M/S KRISHNA ELECTRIC COMPANY AGED 75 YEARS VIJAYAM, THIRUMUKKU, CHATHANNUR, MEENADU, KOLLAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, K.
VANARAJAN, PIN – 691572 BY ADVS.
SRI.BOBBY JOHN SRI.S.AJAYGHOSH KUMAR SMT.FEVITHA K VISWAM RESPONDENTS/RESPONDENTS:
1 THE SUPERINTENDENT OF CENTRAL GST & CENTRAL EXCISE, KOTTIYAM RANGE ST. MARRY'S BUILDING, KADAPPAKADA, KOLLAM DISTRICT, PIN – 691008 2 THE DEPUTY COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE, AWWAL TOWER, MIDDLE HILL, MALAPPURAM DIVISION, MALAPPURAM DISTRICT, PIN – 676505 3 STATE OF KERALA 9TH FLOOR, TAX TOWER, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM, PIN – 695002 4 THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS REPRESENTED BY THE PRINCIPAL COMMISSIONER GST, GST POLICY WING, NO.503, B WING, 5TH FLOOR, CBIC, HUDCO VISHALA BUILDING, BHIKAJI CAMA PLACE, R. K. PURAM, NEW DELHI, PIN – 110066
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WA No.429 of 2024 5 M/S. SPANILA SANITARY WARE BUILDING NO. 7/175-A,B,C, AREACODE ROAD, PULLUR, KARUVAMBRAM P.O, MANJERI, MALAPPURAM, PIN - 676123 BY ADV.
SRI.SREELAL.N.WARRIER, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WA No.429 of 2024 JUDGMENT Dr. A.K.Jayasankaran Nambiar, J.
The petitioner in WP(C).No.1760 of 2024 is the appellant herein aggrieved by the judgment dated 19.02.2024 of a learned Single Judge.
The Writ Petition was filed by the appellant seeking a direction to quash Exts.P10 and P11 orders passed by the 1st respondent denying the appellant the benefit of input tax credit in respect of tax shown by the 5th respondent supplier in the invoice raised on the appellant for supply of ceramic items. The learned Single Judge took note of the incidental prayers raised by the appellant in the Writ Petition, which was to direct the respondent statutory authority to pursue action against the 5th respondent for non-payment of tax so that he could be absolved of any liability to reverse the input tax credit taken of the tax that ought to have been paid by the 5th respondent, and disposed the Writ Petition by recording the submission of the learned Standing Counsel for the respondents that action had been initiated against the 5th respondent.
2. In the appeal before us, it is the submission of Sri.Bobby John, the learned counsel for the appellant that if, as a matter of fact, action has been initiated against the 5th respondent for recovery of the tax
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WA No.429 of 2024 amount concerned, then there would be no meaning in proceeding against the appellant through Exts.P10 and P11 orders passed by the 1st respondent.
When the Writ Appeal came up on the last occasion, we had directed the learned Standing counsel for the respondents to get details of the proceedings initiated against the 5th respondent. Through a counter affidavit that is filed today, we have been shown an order dated 31.03.2023 passed by the Deputy Commissioner of Central Excise, Malappuram Division, which clearly finds the 5th respondent liable to pay the tax amount in question in relation to which the appellant herein had availed input tax credit. Taking note of the said order passed against the 5th respondent, we are of the view that the orders passed against the appellant in the Writ Petition cannot be legally sustained.
We, therefore, allow this appeal by setting aside the impugned judgment of the learned Single Judge and allowing the Writ Petition by quashing Exts.P10 and P11 orders impugned therein in the light of the order dated 31.03.2023 passed against the 5th respondent.
Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- SYAM KUMAR V.M.
JUDGE mns
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WA No.429 of 2024 APPENDIX OF WA 429/2024 RESPONDENT ANNEXURES Annexure R2(A) TRUE COPY OF ORDER IN ORIGINAL NO. 09/2023 GST DATED 31.03.2023 ISSUED BY THE 2ND RESPONDENT AGAINST THE 5TH RESPONDENT