Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 26TH DAY OF JUNE 2023 / 5TH ASHADHA, 1945 WP(C) NO. 25509 OF 2022 PETITIONER/S:
M/S. S. P. TRADERS AGED 44 YEARS D . NO .56 / 77 / 6-A, SULTHANPET, MANGALAM ROAD, TIRUPPUR, TAMILNADU REPRESENTED BY ITS PARTNER ANPU, PIN - 641663 BY ADV P.N.DAMODARAN NAMBOODIRI RESPONDENT/S:
1 THE ASST. STATE TAX OFFICER SURVEILLANCE SQUAD , STATE GST DEPARTMENT, VAZHIKKADAVU, MALAPPURAM, PIN - 679505 2 THE STATE TAX OFFICER, SURVEILLANCE SQUAD, STATE GST DEPARTMENT, VAZHIKKADAVU, MALAPPURAM ., PIN - 679505 3 THE DEPUTY COMMISSIONER (INT.), STATE GST DEPARTMENT, VAZHIKKADAVU, MALAPPURAM, PIN - 679505 OTHER PRESENT:
SR G P SMT THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 25509 OF 2022 2 JUDGMENT The writ petition is filed to quash Exts.P7 and P13 orders passed by the 1st respondent detaining the goods with the vehicle, and demanding the petitioner to remit an exorbitant penalty.
2. The petitioner's case is that, he is a registered taxable person under the Goods and Service Tax Act, 2017 (in short, 'Act'). The petitioner had sold certain scrap machinery to a firm, as per invoice dated 27.07.2022, for an amount of Rs.8,75,000/-. Even though the consignment was supported with all the relevant materials, the vehicle was intercepted by the 1st respondent and the petitioner was directed to produce certain documents. After perusing the documents, the 1st respondent initiated proceedings under Section 129 of the Act, alleging that the invoice were mistakenly written as SGST and CGST instead of IGST. Pursuant to Ext.P8 notice, the petitioner produced revised invoice
WP(C) NO. 25509 OF 2022 3 under Section 31 of the Act. But, the 1st respondent refused to accept the same. The action of the 1st respondent is arbitrary and illegal. Hence, the writ petition.
3. When the writ petition came up for consideration on 22.08.2022 this Court passed the following interim order:
“The petitioner is aggrieved by Ext.P13 order issued under the provisions of sub-section (3) of Section 129 imposing on the petitioner a penalty of Rs.3,15,000/-. The petitioner was transporting goods from Tiruppur to Kerala. In the invoice accompanying the goods, the tax paid was shown to be under CGST & SGST, whereas it should have been shown as tax paid towards IGST. However, in the E-way bill accompanying the goods the tax paid was correctly shown as paid towards IGST. If the petitioner pays tax payable as IGST as CGST/SGST, there will be loss of revenue as far as the State of Kerala is concerned. This was the reason for initiating proceedings under Section 129. However, it cannot be lost sight of that in the E-way bill accompanying the goods, the tax paid was correctly shown as IGST. The learned counsel appearing for the petitioner states that the mistake has been corrected while issuing credit note/debit note and in the monthly return filed for the month of July 2022, the amount paid has been correctly shown as IGST.
WP(C) NO. 25509 OF 2022 4 2. Having regard to the above facts and having heard the learned Senior Government Pleader also, there will be an interim order directing the 1 st respondent to verify monthly returns filed by the petitioner for the month of July 2022 and determine whether the amount in question was correctly shown as IGST instead of CGST/SGST. If the officer finds that the amount has been correctly shown as IGST in the monthly returns filed for the month of July 2022, notwithstanding the issuance of Ext.P13 order, the officer shall consider whether the mistake committed by the petitioner can be penalized by imposing a minor penalty. The authorised representative of petitioner shall mark appearance before the 1st respondent at 11 a.m on 24-08-2022 for the above purpose. Let orders be passed by the 1st respondent as directed above on or before 25-08-2022. The petitioner shall produce a copy of the returns for the month of July 2022 before the 1st respondent.
Post on 29-08-2022”.
(emphasis given) 4. Heard; Sri.P.N.Damodaran Namboodiri, the learned Counsel appearing for the petitioner and Smt.Thushara James, the learned Government Pleader appearing for the respondents.
5. Smt.Thushara James, on instructions, submitted
WP(C) NO. 25509 OF 2022 5 that pursuant to the interim order passed by this Court, the 1st respondent has considered the matter and has passed an order on 24.08.2022 holding thus:
“Kind attention is invited to the reference cited. As per the interim order of Ho'ble High Court of Kerala, Advocate of the tax payer appeared and produced the proof for payment of IGST against the disputed consignments along with the monthly return of July 2022. he also expressed his willingness in writing to remit penalty amount to Rs.50,000/- for the mistake committed by the tax payer and made the payment of the above penalty. Therefore, the good and conveyance released vide ref. 3rd above”.
(emphasis supplied) 6. The learned Counsel appearing for the petitioner now submits that the petitioner proposes to challenge the present order passed by the 1st respondent in the present writ petition, by amending the same.
7. Having considered the pleadings and materials on record, and the rival submissions made across the Bar, I hold that the petitioner cannot aspire to challenge the above order, especially after expressing his
WP(C) NO. 25509 OF 2022 6 willingness in writing to remit the penalty amount, which in turn was passed on the basis of a direction of this Court, which has attained finality.
8. In the above background, the present request made by the learned Counsel appearing for the petitioner is untenable and cannot be permitted. In the light of the order dated 24.08.2022 passed by the 1st respondent, I am of the definite view that nothing further survives in this writ petition.
Resultantly, the writ petition is dismissed.
Sd/-
C.S.DIAS JUDGE rkc/26.06.23
WP(C) NO. 25509 OF 2022 7 APPENDIX OF WP(C) 25509/2022 PETITIONER EXHIBITS Exhibit- P 1 TRUE COPYY OF THE REGISTRATION CERTIFICATE
BEARING
GSTIN
NO.
33ADNFS6385GIZM DATED 21-02-2018 .
Exhibit- P 2 TRUE COPY OF THE SALE INVOICE NO.32/22- 23 DATED 27-07- 2022 TO M/S. ACTIVE CHAR PRODUCTS PVT. LTD, EDAYAR, BINANIPURAM Exhibit- P3 TRUE COPY OF THE E-WAY BILL DATED 28-07- 2022 HAVING NO.5113 9453 7806, GENERATED BY THE PETITIONER .
Exhibit- P4 TRUE COPY OF THE FORM GST MOV- 01 DATED 29-07-2022, REFERENCE NO. NIL Exhibit- P 5 TRUE COPY OF THE F`ORM GST MOV-02 DATED 29-07-2022, REFERENCE NO. NIL Exhibit- P6 TRUE COPY OF THE FORM GST MOV-04 PHYSICAL VERIFICATION REPORT NO.OR- 112/2022-23 DATED 29-07-2022 ISSUED BY THE LST RESPONDENT TO THE PETITIONER Exhibit- P7 TRUE COPY OF THE F`ORM GST MOV-06 ORDER OF DETENTION HAVING REFERENCE NO. NIL DATED 29-07-2022 Exhibit- P8 TRUE COPY OF THE FORM GST MOV-07 NOTICE NO.SON.112/22-23 DATED 29-07-2022 U/S.
129(3) OF THE COST ACT, 2017 ISSUED BY THE LST RESPONDENT TO THE PETITIONER Exhibit- P9 TRUE COPY OF THE REVISED INVOICE NO.32/22-23 DATED 27- 07-2022 ISSUED BY THE PETITIONER Exhibit- P10 TRUE COPY OF THE CREDIT NOTE NO.01 DATED 30-07-2022 ISSUED BY THE PETITIONER Exhibit- P11 TRUE COPY OF THE DEBIT NOTES NO.DN-01 DATED 30-07-2022 ISSUED BY THE
WP(C) NO. 25509 OF 2022 8 PETITIONER Exhibit-P12 TRUE COPY OF THE REPLY DATED 02-08- 2022 FILED BEFORE THE LST RESPONDENT .
Exhibit- P13 TRUE COPY OF THE ORDER DATED 02.08.2022 BEARING NO.OR/SQD-V/ 112/2022-23 ISSUED BY THE LST RESPONDENT Exhibit P14 TRUE COPY OF THE REPLY DATED 24/8/2022 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT Exhibit P15 TRUE COPY OF THE RETURN FOR THE MONTH OF JULY 2022 IN G S T R -1 AND G S T R - 3 B SUBMITTED BY THE PETITIONER.
Exhibit P16 TRUE COPY OF THE ORDER DATED 24/8/2022 ISSUED BY THE 1ST RESPONDENT