Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 16TH DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 WA NO. 379 OF 2023 AGAINST THE JUDGMENT DATED 18.01.2023 IN WP(C) 31445/2022 OF HIGH COURT OF KERALA APPELLANTS/PETITIONERS:
1 SASI PATHIRAKUNNATH AGED 55 YEARS PROPRIETOR, A ONE GOLD, TC-26/289-1, MYLIPADAM, CHEMBUKKAVU P O; THRISSUR DISTRICT, PIN – 680020 2 NIKHIL SURESH AGED 20 YEARS S/O. SURESH T V, RESIDING AT THIRUVAMBADY HOUSE, KEERAMKULAGARA, THRISSUR., PIN – 680005 BY ADV TOMSON T.EMMANUEL RESPONDENTS/RESPONDENTS:
1 ASSISTANT STATE TAX OFFICER (INTELLIGENCE) STATE GOODS & SERVICES TAX DEPARTMENT, SQUAD NO.1, EDAPPALLY, COCHIN., PIN – 682024 2 STATE TAX OFFICER (INTELLIGENCE) STATE GOODS & SERVICES TAX DEPARTMENT, SQUAD NO.1, EDAPPALLY, COCHIN., PIN – 682024 3 RAILWAY PROTECTION FORCE ERNAKULAM SOUTH RAILWAY STATION, COCHIN, REPRESENTED BY ITS CIRCLE INSPECTOR., PIN – 682016 4 STATE OF KERALA
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WA. No.379 of 2023 STATE GOODS & SERVICES TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM., PIN – 695001 5 COMMISSIONER (GST) GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, GST POLICY WING, NEW DELHI., PIN – 110001 6 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI., PIN - 110001 BY GOVERNMENT PLEADER SMT. M M JASMINE THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WA. No.379 of 2023 JUDGMENT A.K.Jayasankaran Nambiar, J.
The appellants/writ petitioners are aggrieved by the judgment dated 18.01.2023 of the learned Single Judge in WP(C).No.31445 of 2022. Briefly stated the facts are that in a challenge raised against an order of detention under Section 130 of the Goods and Services Tax Act (hereinafter referred to as 'the GST Act'), the petitioners had in the Writ Petition questioned the jurisdiction of the officer in initiating confiscation proceedings under Section 130 of the GST Act. The learned Single Judge who considered the matter found that there was no discrepancy or irregularity in the issuance of the notice and order of confiscation of the goods, for the limited purpose of determining the issue of jurisdiction, and relegated the appellants to the alternate remedy of filing an appeal against the impugned order under Section 130 before the Appellate Authority under the Act for an adjudication on the merits of the case. It is against the said direction of the learned Single Judge that the appellants are before us through this Writ Appeal.
2. We have heard Sri.Tomson T. Emmanuel, the learned counsel appearing for the appellants, and Smt.M.M.Jasmine, the learned
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WA. No.379 of 2023 Government Pleader appearing on behalf of the respondents.
3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, we find no reason to interfere with the directions of a learned Single Judge in the impugned judgment since the learned Single Judge has appreciated the contentions of the appellants and found that as regards the jurisdiction of the officer who passed the order impugned in the Writ Petition, the said officer indeed had the jurisdiction to initiate and pass the orders of confiscation. The learned Single Judge thereafter relegated the appellants to the alternate remedy of filing an appeal before the Appellate Authority so that there could be a decision arrived at by the Appellate authority on the merits of the case of the appellants herein with regard to the legality of the confiscation order passed under Section 130 of the GST Act. In our view, the impugned judgment of the learned Single Judge calls for no interference.
Taking note of the submission of the learned counsel for the appellants, that the time granted by the learned Single Judge to prefer an appeal before the Appellate Authority has since expired, we direct that if the appellants prefer the appeal before the Joint Commissioner Appeals, Thrissur, within a period of one week from the date of receipt
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WA. No.379 of 2023 of a copy of this judgment, then the said Appellate Authority shall dispose the appeal within an outer time limit of three weeks thereafter.
By way of abundant caution, we also make it clear that till such time as orders are passed by the Appellate Authority in the appeal as directed and the order communicated to the appellants, the sale of the confiscated goods as contemplated under Section 130(7) of the GST Act shall stand deferred.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
MOHAMMED NIAS C.P.
JUDGE mns
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WA. No.379 of 2023 APPENDIX OF WA 379/2023 PETITIONER ANNEXURES Annexure-I TRUE COPY OF VOUCHER NO.IRD/3 DATED 02.09.2022 ISSUED BY BROTHERS GOLD AND DIAMONDS, ALAPPUZHA.
Annexure-II TRUE COPY OF DELIVERY CHALLAN NO.179 DATED 05.09.2022 ISSUED BY ADHIPARASHAKTHI BANGLE JOB WORKS, ALAPPUZHA.
Annexure-III TRUE COPY OF DELIVERY CHALLAN NO.181 DATED 06.09.2022 ISSUED BY ADHIPARASHAKTHI BANGLE JOB WORKS, ALAPPUZHA.
Annexure-IV TRUE COPY OF CREDIT NOTE NO.CN/2 DATED 08.09.2022 ISSUED BY THE PETITIONER FOR 99.370 GRAMS OF GOLD ORNAMENTS.