Five Star Metals(P) LTD. v. State Tax Officer - Kerala High Court, 11 Aug 2023

Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 11TH DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 WP(C) NO. 20129 OF 2020 PETITIONER/S:

FIVE STAR METALS(P) LTD.

NEMMARA ROAD, PALLAVOOR P.O., PALAKKAD-678688, REPRESENTED BY ITS MG. DIRECTOR A.G.MADHAVAN.

BY ADVS.

P.S.SOMAN SMT.T.RADHAMONY RESPONDENT/S:

1 STATE TAX OFFICER SQUAD-VI, STATE GOODS AND SERVICE TAX DEPARTMENT, TAX COMPLEX, PALAKKAD-678001.

2 ASSISTANT COMMISSIONER OF CENTRL TAX AND CENTRAL EXCISE, PALAKKAD DIVISION, CR BUILDING, METTUPPALAYAM STREET, PALAKKAD-678001.

3 THE STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

4 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI-110001.

BY ADVS.

GOVERNMENT PLEADER SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENTRAL BOARD OF EXCISE & CUSTOMS SRI.RAJAGOPALAN.A., CGC OTHER PRESENT:

RESHMITARAMACHANDRAN-GP THOMAS MATHEW-R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.20129 of 2020 2 JUDGMENT 1.

The present writ petition has been filed under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents 1 & 2 to sanction and refund the amount of Rs.4,61,942/- wrongly paid by the petitioner on the basis of the orders Ext.P3 case proceedings and Ext.P4 intimation given by the first respondent to the petitioner.

It is the case of the petitioner that he had purchased a passenger motor vehicle involving taxable value of Rs.2 lakhs and more and had not claimed input tax credit for the value of the said vehicle. Under the pain of penalty and for other proceedings, the petitioner paid the amount demanded. However, on verification it was found that the petitioner had not claimed input tax credit for the value of the said vehicle. The petitioner, thereafter, immediately moved an application on 03.08.2020 stating therein that the petitioner had not claimed input tax credit for the value of

WP(C) No.20129 of 2020 3 the vehicle and claimed refund of the amount paid by him on 25.07.2020 in pursuance to Exts.P3 and P4.

The first respondent verified the claim of the petitioner and vide the intimation dated 05.08.2020, Ext.P8, to the 2nd respondent intimated that the petitioner/dealer, had not availed the input tax credit for the purchase of the said passenger vehicle and the petitioner/dealer was eligible to get refund of the amount mistakenly paid by him.

The second respondent was therefore, requested to take further action for the refund of the amount paid by the petitioner in pursuance to Exts.P3 and P4. Despite the said finding and the intimation by the first respondent to the second respondent, the petitioner has not been refunded the amount paid by him to the extent of Rs.4,61,942/- on 25.07.2020 to the second respondent.

Smt.Reshmita

Ramachandran,

the

learned Government Pleader submits that the GST Authority has no objection for making the payment of the amount which the petitioner mistakenly paid in pursuance to Exts.P3 and P4.

Sri. Thomas Mathew Nellimoottil, learned counsel

WP(C) No.20129 of 2020 4 for the 2nd respondent, however submits that there has been no proper adjudication on the application of the petitioner for refund of the amount. However, he does not dispute that the first respondent after verification of the documents vide the intimation dated 05.08.2020, has clearly stated that the petitioner had paid the said amount mistakenly in pursuance of Exts.P3 and P4 and the petitioner is entitled to get refund.

It appears that the Authority has adopted highly technical approach in the matter. When the competent authority i.e. respondent No.1, after verification of the documents and facts has found that the petitioner has not claimed the input tax credit for the value of the passenger vehicle in question and paid the tax amount demanded by Exts.P3 and P4, the petitioner is entitled to get refund of the amount paid by him. The approach of the Authority does not appear to be proper.

In view thereof, I allow this writ petition and direct the second respondent to remit the amount of Rs.4,61,942/- with interest at the rate of 9% with effect from 05.08.2020 i.e. date of the intimation by the first respondent to the

WP(C) No.20129 of 2020 5 second respondent. The principal amount and interest thereon is directed to be paid within a period of one month from today.

With the aforesaid directions, this writ petition is allowed.

Sd/- DINESH KUMAR SINGH JUDGE Shg

EXHIBIT P2 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE MOTOR VEHICLES DEPARTMENT.

EXHIBIT P3 TRUE COPY OF THE NOTICE OF INTIMATION OF LIABILITY NO.ITC/VI/2017-18/2 DATED 4.7.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE FORM GST DRC-01A NO.ITC/VI/2017- 18/2 DATED 04.7.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE FORM GST DRC-03 DATED 25.7.2020 GENERATED BY THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE FORM GST DRC-04 ACKNOWLEDGEMENT DATED 27.7.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE FORM PART-B OF GST DRC-O1A DATED 3.8.2020 FILED BY THE PETITIONER.

EXHIBIT P8 TRUE COPY OF THE LETTER NO.ITC/VI/2017-18/2 DATED 5.8.2020 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE REPLY LETTER NO.IV/16/02/2020/GST/TECH-1 DATED 17.8.2020 ISSUED BY THE 2ND RESPONDENT MARKING COPY TO THE 1ST RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE DEFICIENCY MEMO NO.AA320820017517J ISSUED IN FORM-GST-RFD-03 DATED 7.9.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 8.9.2020 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE REPLY TO EXHIBIT P11 LETTER DATED 11.9.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE LETTER DATED 15.9.2020 ALONG WITH ATTACHED DOCUMENT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P14 TRUE COPY OF THE REVISED REFUND APPLICATION ARN- AA3209200100813 DATED 15.9.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.