Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 WP(C) NO. 10761 OF 2024 PETITIONER:
PARIONS ROLLER FLOUR MILLS PRIVATE LIMITED, 6/1183, KUNHIPARI BUILDING, CHEROOTTY ROAD, KOZHIKODE REPRESENTED BY ITS DIRECTOR N K KHALID, PIN - 673032 BY ADVS.
ASWIN GOPAKUMAR ANWIN GOPAKUMAR ADITYA VENUGOPALAN MAHESH CHANDRAN SARANYA BABU ANGITA T. MENON SHALLET K. SAM RESPONDENT:
THE INTELLIGENCE OFFICER, INTELLIGENCE UNIT, STATE GOODS AND SERVICES TAX DEPARTMENT, MINI CIVIL STATION, PERUMBAVOOR, PIN - 683542 SMT. RESHMITA RAMACHANDRAN-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2024, ALONG WITH WP(C).10788/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOs. 10761 & 10788 OF 2024 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 WP(C) NO. 10788 OF 2024 PETITIONER:
PARISONS FOODS PRIVATE LIMITED, 6/1183, KUNHIPARI BUILDING, CHEROOTTY ROAD, KOZHIKODE REPRESENTED BY ITS DIRECTOR N K KHALID., PIN - 673002 BY ADVS.
ANWIN GOPAKUMAR ADITYA VENUGOPALAN MAHESH CHANDRAN SARANYA BABU ANGITA T. MENON SHALLET K. SAM RESPONDENT:
THE INTELLIGENCE OFFICER, INTELLIGENCE UNIT, STATE GOODS AND SERVICES TAX DEPARTMENT, MINI CIVIL STATION, PERUMBAVOOR, PIN - 683542 OTHER PRESENT:
SMT. RESHMITA RAMACHANDRAN-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2024, ALONG WITH WP(C).10761/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOs. 10761 & 10788 OF 2024 3 J U D G M E N T Heard the learned counsel Sri.Gopakumar for quite some time.
2.
In these writ petitions, the challenge is against the notices issued to the petitioner under Section 45A of the Kerala General Sales Tax Act, 1963 and the Rules made thereunder ('KGST Act' for brevity).
3.
The learned counsel for the petitioner submits that notices issued to the petitioner under Section 45A of the KGST Act are without jurisdiction and without determination of the taxability on the consumption, the notices are bad in law. He also submitted that the impugned notices do not specify the person to whom allegedly the petitioner has sold HSD in open market, which was meant for its own consumption.
4.
It is not in doubt that the sale of petroleum products in the open market is taxable under the provisions of KGST Act and the rules made thereunder. The petitioner had obtained the bulk HSD from Reliance Refinery situated at Mangalore for its own consumption. The petitioner, instead of consuming the entire quantity of bulk purchase, allegedly has diverted some portion of it in the open market without payment of tax. A detailed
WP(C) NOs. 10761 & 10788 OF 2024 4 investigation was carried out by the Intelligence Wing of the Directorate General of GST Intelligence, which would demonstrate that large quantity of HSD purchased by the petitioner from the Reliance Refinery situated at Mangalore for its own consumption got diverted in the open market without payment of tax.
5.
Therefore, I find no substance in the submission of the learned counsel for the petitioner that without determination of the taxability of the transaction(s), the notices are bad in law. It cannot be disputed that the sale in open market of HSD is a taxable event.
6.
Whether the petitioner has diverted the bulk HSD purchased by it for own consumption in the open market or not is a disputed question of fact, which cannot devolve upon by this Court in the present writ petitions. The petitioner has filed the reply to the said show cause notice. Therefore, I do not find any ground to interrupt the proceedings pending before the respondent in pursuance to the impugned notice.
7.
In the above view of the matter, I find no substance in these writ petitions, which are hereby dismissed and it is left open to the petitioner to make all the submissions and lead evidence which may be available to them in support of their contention that they had not diverted the HSD in the open market, which was meant for its own consumption.
WP(C) NOs. 10761 & 10788 OF 2024 5 With the aforesaid observations, these writ petitions stand dismissed.
Sd/- DINESH KUMAR SINGH JUDGE rp
WP(C) NOs. 10761 & 10788 OF 2024 6 APPENDIX OF WP(C) 10761/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE DATED 12.12.2023 ISSUED BY THE RESPONDENT Exhibit P-2 A TRUE COPY OF THE PRELIMINARY REPLY DATED 08.01.2024
WP(C) NOs. 10761 & 10788 OF 2024 7 APPENDIX OF WP(C) 10788/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF NOTICE DATED 12.12.2023 ISSUED BY THE RESPONDENT Exhibit P-2 A TRUE COPY OF THE PRELIMINARY REPLY DATED 09.01.2024