Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 3RD DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 WP(C) NO. 23282 OF 2023 PETITIONERS:
1 MEENA KURUVILA, AGED 63 YEARS, W/O. T. T. KURUVILA, THOTTATHIL HOUSE, VAZHICHERRY WARD, ALAPPUZHA, DESIGNATED PARTNER, DAILY EXPRESS LLP, NEAR LAKESHORE HOSPITAL, KUNDANNUR, VYTTILA, ERNAKULAM, PIN – 688001.
2 RAVEENDRAN ABILASH, AGED 25 YEARS, S/O. RAVEENDRAN, CHALAYIL MEETHAL, VILLYAPPALLI, KOZHIKODE, PIN-673542, PROPRIETOR, CEEYEM MARKETING, GSTIN:32AROPA0679C1Z6, NO.5/207A, KOTTAPURATH BUILDING, NEAR SHARIPADI, ELOOR NORTH, KOCHI, PIN – 682306.
BY ADVS.
SRI. BABU JOSEPH KURUVATHAZHA SMT. ARCHANA K. S.
SRI. MOHAMMED SHAFI K.
SRI. HRISHIKRISHNAN RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.
2 JOINT COMMISSIONER, KERALA/CENTRAL GOODS AND SERVICES TAX ACT, 2017(APPEALS),ERNAKULAM, COMMERCIAL TAXES COMPLEX, PERUMANOOR, ERNAKULAM, PIN – 682015.
3 ASSISTANT ENFORCEMENT OFFICER, ENFORCEMENT SQUAD 2, STATE GOODS AND SERVICES TAX DEPARTMENT, PERUMANOOR, ERNAKULAM, PIN – 682015.
4 LIBUMON ANTONY, ASSISTANT ENFORCEMENT OFFICER, ENFORCEMENT SQUAD 2, STATE GOODS AND SERVICES TAX DEPARTMENT, PERUMANOOR, ERNAKULAM DISTRICT, PIN – 682015.
BY ADV.
SMT. RESHMITA RAMACHANDRAN - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 23282 OF 2023 2 DINESH KUMAR SINGH, J.
-------------------------- W.P.(C) No.23282 of 2023 ------------------------- Dated this the 3rd day of October, 2023 JUDGMENT 1.
The present writ petition has been filed by the petitioner for the following reliefs;
i.
issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to release the vehicle bearing Reg. No. KL 04 V 190, along with the goods, pertaining to Exts. P3 to P5 E-Way Bills seized on 01.06.2023, to the petitioners, on appropriate conditions as may be fixed by this Hon’ble Court, forthwith;
ii.
issue any appropriate order or direction, declaring that petitioners are bound to get not less than one lakh rupees from the 3rd and 4th respondents, for not having uploaded the order, in Form MOV-09, in pursuance to Exts. P-6 to P8 proceedings, pertaining to the vehicle and goods seized on 01.06.2023, besides Ext. P11 judgment of this Hon’ble Court;
iii.
issue such other writ, order or direction which may deem fit in the facts and circumstances of the case.
WP(C) NO. 23282 OF 2023 3 2.
The 1st Petitioner claims to be the Director of M/s. Daily Express LLP, which is involved in the business of transportation of goods from one place to another place in the State of Kerala. She is said to be registered dealer under the provisions of Goods and Services Tax Act and Rules, 2017. 2nd petitioner claims to be the dealer in electrical goods and also registered dealer under the provisions of the Goods and Services Tax Act, 2017 and Rules made thereunder.
3.
1st petitioner’s husband, Sri. T. T. Kuruvila said to be the owner of two transport vehicles bearing registration Nos. KL 04 V 190 and KL 04 W 8439, which are heavy goods transportation vehicles.
4.
On 31.05.2023, the 1st petitioner said to have been issued Exhibits P-3, P-4 and P-5 E-Way Bill Nos. 5915 0749 3696, 5415 0749 1046 and 5615 0749 2441 respectively. In Exhibits P-3, P-4 and P-5 E-Way Bills, the vehicle number mentioned is KL 04 W 8439. On verification by the GST Authorities, however, it was found that the vehicle on which the goods were transported was the vehicle bearing registration No. KL 04 V 190 and not the vehicle whose registration number was mentioned in the Exhibits
WP(C) NO. 23282 OF 2023 4 P-3, P-4 and P-5 E-Way Bills. The said vehicle along with the goods were detained on 01.06.2023 for discrepancy of the number mentioned in the Exhibits P-3, P-4 and P-5 E-Way Bills and the vehicle which has been used for transportation of the goods. In the circumstances, the petitioner had approached this Court by filing W.P.(C) No.20771/2023 for the following prayers;
i.
issue a writ of certiorari or any other appropriate writ, order or direction quashing Exts. P-6 to P8(d) proceedings and Ext.P10 reply issued by the 3rd respondent.
ii.
issue such other writ, order or direction declaring that the very issuance of Exts. P6 to P8(d) proceedings of the 3rd respondent was highly erroneous and arbitrary.
Iii.
issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to release the vehicle bearing Reg. No.KL 04 V 190 along with the goods, pertaining Exts. P3 to P5 E- Way Bills to the petitioner, forthwith;
4.
The Learned Single Judge dismissed the above writ petition on 27.06.2023 in view of alternative statutory remedy available to the petitioner and also recording the submission of the Learned Government Pleader that the order of detention was already
WP(C) NO. 23282 OF 2023 5 passed under Section 129 of the CGST Act in Form MOV-09 on 27.06.2023, and the said order would be served on the consignee in the case of unregistered assessee.
5.
The petitioner, within fifteen days of the said Judgment passed by the Learned Single Judge, approached this Court by filing the present writ petition for the reliefs mentioned in paragraph 1.
6.
In the counter affidavit, the 4th respondent has undertaken that the detention order dated 27.06.2023 was served on the petitioner on 27.06.2023 itself. It is also stated that the summary of the order in Form DRC – 07 was uploaded on 12.07.2023 on the portal of the 2nd respondent. This writ petition was also filed on the very same date i.e. 12.07.2023. The petitioner has the remedy of statutory appeal under Section 107 of the GST Act and this Court has dismissed W.P.(C) No.20771/2023 vide Exhibit P-11 Judgment on the ground of availability of statutory remedy available to the petitioner.
7.
When the order of detention has been passed under Section 129 of the GST Act on 13.06.2023 in Form GST MOV-09 and
WP(C) NO. 23282 OF 2023 6 summary order was uploaded in Form DRC-07 on 12.07.2023 and the copy of the order was handed over on 27.06.2023, this Court does not find any ground to entertain this writ petition when there remedy of statutory appeal under Section 107 of the GST Act is available to the petitioner against the order dated 13.06.2023 which was upload in Form GST MOV – 09 on 12.07.2023.
8.
Considering the aforesaid facts and circumstances of the case, the present writ petition is disposed of with liberty to the petitioner to approach the appellate authority within the stipulated time and the appellate authority shall consider and pass orders on the appeal filed by the petitioner expeditiously in accordance with law.
Sd/-
DINESH KUMAR SINGH JUDGE Svn
WP(C) NO. 23282 OF 2023 7 APPENDIX OF WP(C) 23282/2023 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING NO.KL 04 V 190, OWNED BY MR. T.
T. KURUVILA, HUSBAND OF THE 1ST PETITIONER EXHIBIT P2 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING NO. KL 04 W 8439, OWNED BY MR.
T. T. KURUVILA, HUSBAND OF THE 1ST PETITIONER EXHIBIT P3 TRUE COPY OF THE E-WAY BILL NO. 5915 0749 3696 DATED 1.6.2023, GENERATED FROM THE OFFICE OF THE 1ST PETITIONER EXHIBIT P4 TRUE COPY OF THE E-WAY BILL NO. 5415 0749 1046 DATED 1.6.2023, GENERATED FROM THE OFFICE OF THE 1ST PETITIONER EXHIBIT P5 TRUE COPY OF THE E-WAY BILL NO. 5615 0749 2441 DATED 1.6.2023, GENERATED FROM THE OFFICE OF THE 1ST PETITIONER EXHIBIT P6 TRUE COPY OF THE STATEMENT DATED 1.6.2023 ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P3 E- WAY BILL EXHIBIT P6(a) TRUE COPY OF THE ORDER FOR PHYSICAL VERIFICATION/INSPECTION OF THE CONVEYANCE, GOODS AND DOCUMENTS DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P3 E- WAY BILL EXHIBIT P6(b) TRUE COPY OF THE PHYSICAL VERIFICATION REPORT DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P3 E- WAY BILL EXHIBIT P6(c) TRUE COPY OF THE ORDER OF DETENTION DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P3 E- WAY BILL EXHIBIT P6(d) TRUE COPY OF THE NOTICE UNDER SECTION 129 (3) DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P3 E- WAY BILL
WP(C) NO. 23282 OF 2023 8 EXHIBIT P7 TRUE COPY OF THE STATEMENT DATED 1.6.2023 ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P4 E- WAY BILL EXHIBIT P7(a) TRUE COPY OF THE ORDER FOR PHYSICAL VERIFICATION/INSPECTION OF THE CONVEYANCE, GOODS AND DOCUMENTS DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P4 E- WAY BILL EXHIBIT P7(b) TRUE COPY OF THE PHYSICAL VERIFICATION REPORT DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P4 E- WAY BILL EXHIBIT P7(c) TRUE COPY OF THE ORDER OF DETENTION DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P4 E- WAY BILL EXHIBIT P7(d) TRUE COPY OF THE NOTICE UNDER SECTION 129 (3) DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P4 E- WAY BILL EXHIBIT P8 TRUE COPY OF THE STATEMENT DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P5 E- WAY BILL EXHIBIT P8(a) TRUE COPY OF THE ORDER FOR PHYSICAL VERIFICATION/INSPECTION OF THE CONVEYANCE, GOODS AND DOCUMENTS DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P5 E- WAY BILL EXHIBIT P8(b) TRUE COPY OF THE PHYSICAL VERIFICATION REPORT DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P5 E- WAY BILL EXHIBIT P8(c) TRUE COPY OF THE ORDER OF DETENTION DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P5 E- WAY BILL EXHIBIT P8(d) TRUE COPY OF THE NOTICE UNDER SECTION 129 (3) DATED 1.6.2023, ISSUED BY THE 3RD RESPONDENT, ON SEIZURE OF GOODS PERTAINING TO EXT.P5 E- WAY BILL
WP(C) NO. 23282 OF 2023 9 EXHIBIT P9 TRUE COPY OF THE EXPLANATION DATED 2.6.2023 OFFERED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P10 TRUE COPY OF THE REPLY DATED 7.6.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P11 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 27.6.2023 IN W.P.(C) NO.20771/2023 EXHIBIT P12 TRUE COPY OF THE REPLY DATED 7.7.2023 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P13 TRUE COPY OF THE ORDER DATED 2.9.2022 IN WRIT PETITION NO.6110/2020, ISSUED BY THE HON'BLE HIGH COURT OF MADHYA PRADESH AT JABALPUR EXHIBIT P14 TRUE COPY OF THE ORDER DATED 12.1.2023 IN SPECIAL CIVIL APPLICATION NO.17506/2022, ISSUED BY THE HON'BLE HIGH COURT OF GUJARAT AT AHMEDABAD EXHIBIT P15 TRUE COPY OF THE ORDER DATED 13.4.2018 IN WRIT TAX NO.637/2018, ISSUED BY THE HON'BLE HIGH COURT OF ALLAHABAD EXHIBIT P16 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 15.6.2012 IN O.T. REV. NO.30/2012 EXHIBIT P17 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 4.12.2018 IN W.P.(C) NO.39022/2018 EXHIBIT P18 TRUE COPY OF THE ORDER NO.ZD320723006778B DATED 12.7.2023, UPLOADED BY THE 3RD RESPONDENT IN THE STATUTORY FORMAT DIRECTING THE 2ND PETITIONER TO REMIT RS.22,794/- EXHIBIT P19 TRUE COPY OF THE ORDER NO.ZD320723006764K DATED 12.7.2023, UPLOADED BY THE 3RD RESPONDENT IN THE STATUTORY FORMAT DIRECTING THE 2ND PETITIONER TO REMIT RS.22,780/- EXHIBIT P20 TRUE COPY OF THE ORDER NO.ZD320723006749C DATED 12.7.2023, UPLOADED BY THE 3RD RESPONDENT IN THE STATUTORY FORMAT DIRECTING THE 2ND PETITIONER TO REMIT RS.28,420/- EXHIBIT P21 TRUE COPY OF THE NOTICE NO.OR/EF2/31/GST/23-24 DATED 6.8.2023 ISSUED BY THE 3RD RESPONDENT
WP(C) NO. 23282 OF 2023 10 EXHIBIT P22 TRUE COPY OF THE NOTICE NO.OR/EF2/32/GST/23-24 DATED 6.8.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P23 TRUE COPY OF THE NOTICE NO.OR/EF2/33/GST/23-24 DATED 6.8.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P24 TRUE COPY OF THE OBJECTION DATED 11.8.2023 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT, IN RESPONSE TO EXT.P21 EXHIBIT P25 TRUE COPY OF THE OBJECTION DATED 11.8.2023 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT, IN RESPONSE TO EXT.P22 EXHIBIT P26 TRUE COPY OF THE OBJECTION DATED 11.8.2023 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT, IN RESPONSE TO EXT.P23 4TH RESPONDENT’S EXHIBITS EXHIBIT R4(a) TRUE COPY OF THE LOG BOOK MAINTAINED BY THE DEPARTMENT OF THE STATE GST,DATED 27.06.2023 EXHIBIT R4(b) TRUE COPY OF THE ORDER IN FORM GST MOV-09 DATED 13.06.23 WHICH IS SERVED ON THE FIRST PETITIONER ON 27.06.2023 ALONG WITH THE SIGNATURE OF THE RECEIVING OFFICER EXHIBIT R4(c) TRUE COPY OF THE LETTER DATED 03.07.2023 ALONG WITH THE ORDER SUBMITTED BY THE FIRST PETITIONER TO THE THIRD RESPONDENT