Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 11TH DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 WA NO. 2075 OF 2023 AGAINST THE JUDGMENT WP(C) 38396/2023 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:
FASALURAHMAN P.T AGED 39 YEARS PROPRETIOR, NATIONAL ENTERPRISES, 1008, PARAPPIRIVU, PUDUSSERY, PALAKKAD, KERALA,, PIN - 678621 BY ADVS.P.A.MOHAMMED ASLAM ABDUL SAMAD P.B.
E.B.THAJUDDEEN P.SANJAY MIDHUN MOHAN SHAHIN BADUSHA SARATH SASI RESPONDENTS/RESPONDENTS:
1 DEPUTY ENFORCEMENT OFFICER, ENFORCEMENT SQUAD NO.1, STATE GOODS AND SERVICE TAX DEPARTMENT, PERUMANOOR, ERNAKULAM, PIN - 682015 2 SENIOR ENFORCEMENT OFFICER ENFORCEMENT SQUAD NO.1, STATE GOODS AND SERVICE TAX DEPARTMENT, PERUMANOOR, ERNAKULAM, PIN - 682015
WA No.2075/2023 -:2:- 3 THE SECRETARY TO TAXES GOVERNMENT OF KERALA, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 682031 4 THE CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI,, PIN - 110001 5 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, NEW DELHI, PIN - 110001 BY ADV VISHNU JAYAPALAN SR GP VK SHAMSUDHEEN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.2075/2023 -:3:- J U D G M E N T Dr. Kauser Edappagath, J.
This writ appeal has been filed challenging the judgment of the learned Single Judge in WP(C) No.38396/2023 dated 17/11/2023.
2.
The appellant is the writ petitioner. He filed the writ petition seeking to quash Ext.P6 confiscation order issued by the 2nd respondent under Section 130 of the GST Act. The learned Single Judge dismissed the writ petition, relegating the appellant to the statutory remedy of appeal under Section 107 of the CGST/SGST Act. It is challenging the said judgment; the appellant is before us.
3.
We have heard Sri.P.Sanjay, the learned counsel for the appellant and Sri.V.K.Shamsudeen, the learned Senior Government Pleader.
4.
The learned counsel for the appellant, Sri. P. Sanjay submitted that Ext.P6 issued by the 2nd respondent was without jurisdiction and hence, the writ petition challenging the same
WA No.2075/2023 -:4:- invoking Article 226 of the Constitution of India without exhausting the alternative remedy of appeal is maintainable. The learned counsel relied on the latest decision of the Apex Court in M/s Godrej Sara Lee Ltd. V. The Excise and Taxation Officer-cum- Assessing Authority and Others [2023 LiveLaw (SC) 70] in support of his submission.
According to the appellant, the consignment was admittedly accompanied by a Bill of Supply and an e-way bill, even though the physical copy of the Bill of Supply was not produced at the time of interception. Hence, the confiscation of his goods and conveyance is ex facie illegal and totally uncalled for. A perusal of Ex.P6 order would show that it was issued on the satisfaction that goods were transported without valid documents and for the purpose of evading tax. The case of the appellant is that the said finding was arrived at without any reason and the 2nd respondent wrongly applied Section 130. The question whether the appellant transported the goods without documents to evade tax or not and the question whether Section 130 of the GST Act is attracted in the facts and circumstances of the case are matters of evidence. Those disputed facts cannot be adjudicated in the
WA No.2075/2023 -:5:- exercise of jurisdiction vested with this Court under Article 226 of the Constitution of India. In M/s Godrej Sara Lee Ltd. (supra), the Apex Court has only held that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of the availability of an alternative remedy. The controversy in the case is not purely legal. As stated already, it involves disputed questions of fact. Hence, we are of the view that the learned Single Judge was absolutely justified in dismissing the writ petition, relegating the appellant to the alternative statutory remedy of appeal. The appellant is free to take up all contentions raised here before the Appellate Authority and also to move an application for interim release of the goods. The writ appeal is accordingly dismissed.
Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
DR. KAUSER EDAPPAGATH JUDGE Rp