Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI THURSDAY, THE 9TH DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 WP(C) NO. 15547 OF 2021 PETITIONER:
KERALA STATE DRUGS AND PHARMACEUTICALS LTD KALAVOOR P.O., ALAPPUZHA 688 522, REPRESENTED BY ITS FINANCE MANAGER.
BY ADV A.KRISHNAN RESPONDENTS:
1 SUPERINTENDENT, OFFICE OF THE SUPERINTENDENT CENTRAL GST AND CENTRAL EXCISE, DEPARTMENT OF REVENUE, CHANDRA SQUARE, CULLEN ROAD, ALAPPUZHA 688 011.
2 SENIOR INTELLIGENCE OFFICER, DIRECTORATE GENERAL OF GST INTELLIGENCE, KOZHIKODE UNIT, 'MAHE HOUSE', PANICKER ROAD, NADAKKAVU P.O.
KOZHIKODE 673 011.
3 DEPUTY DIRECTOR, DIRECTORATE GENERAL OF GST INTELLIGENCE KOZHIKODE UNIT, 'MAHE HOUSE', PANICEKR ROAD, NADAKKAVU P.O.
KOZHIKODE 673 011.
WP(C) NO. 15547 OF 2021 2 4 THE UNION OF INDIA, REPRESENTED BY SECRETARY TO FINANCE, MINISTRY OF FINANCE AND COMPANY AFFAIRS, NEW DELHI 110 001.
BY ADVS.
SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS CHANDINI G NAIR, CGC SRI. S. MANU DSGI.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 15547 OF 2021 3 T.R. RAVI, J.
-------------------------------------------- W. P. (C). No. 15547 of 2021 -------------------------------------------- Dated this the 9th day of March, 2023 JUDGMENT Admit. Standing Counsel takes notice for respondents 1 to 3.
DSGI takes notice for the 4th respondent.
2.
The prayer in the writ petition is to quash Ext.P4 demand notice. The petitioner, which is a Government Company, has been manufacturing hand sanitizers containing alcohol. They were paying tax by treating the product as coming under HSN Code 3004. In an advance ruling, it was held that the entry that applies is HSN Code 3808 relating to disinfectants, which invites higher percentage of tax.
The petitioner was issued with a demand notice, which is produced as Ext.P4. On 23.02.2021, the Directorate General had issued Ext.P5 to the petitioner, wherein it is stated that the request for waiver of the demand and interest cannot be considered and if the petitioner decides to wait till show cause notice to be issued, the benefit of reduced penalty at the rate mentioned in the letter will not be available and the rate of penalty will be 100% of the tax demanded.
3.
Pending the writ petition, a show cause notice has also
WP(C) NO. 15547 OF 2021 4 been issued to the petitioner. The issue whether there is a mis- classification is to be decided after hearing on the show cause notice and this Court need not in exercise of the jurisdiction under Article 226 decide the same at this stage.
The writ petition is disposed of directing the petitioner to prefer their objections to the show cause within three weeks from today and thereafter the same shall be considered and disposed of by the competent authority within two months thereafter. Coercive action shall be kept in abeyance till a decision is taken on the question of classification.
Sd/- T.R. RAVI
JUDGE Pn
WP(C) NO. 15547 OF 2021 5 APPENDIX OF WP(C) 15547/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE APPROVAL DATED 01.06.2020.
Exhibit P2 TRUE COPY OF THE LETTER DATED 01.07.2020 ISSUED BY THE IST RESPONDENT TO THE PETITIONER.
Exhibit P2(A) TRUE COPY OF REPLY DATED 01.07.2020 TO EXT.
P2.
Exhibit P3 TRUE COPY OF THE SUMMONS DATED 20.07.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit P4 TRUE COPY OF DEMAND NOTICE DATED 01.01.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
Exhibit P4(A) TRUE COPY OF REPLY DTD. 16.01.2021 TO EXT.
P4.
Exhibit P5 TRUE COPY OF DEMAND NOTICE DATED 23.02.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
Exhibit P6 TRUE COPY OF THE ADVANCE RULING ORDER DATED 25.06.2020 ISSUED BY GOA, VIDE NO.
GOA/GAAR/I OF 2021.
Exhibit P6(A) TRUE COPY OF THE CLARIFICATION ISSUED IN PRESS CONFERENCE DATED 15.07.2020.
Exhibit P7 TRUE COPY OF THE NOTIFICATION DATED 27.07.2020 ISSUED BY MINISTRY OF HEALTH AND FAMILY WELFARE, VIDE NO. S.O. 2451 (E).