Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 6TH DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944 WP(C) NO. 39376 OF 2022 PETITIONER:
SAM C ZACHARIA, AGED 49 YEARS, PROPRIETOR,VENUS PHOTO WORLD,D. NO 83, MAR MAKKIL CENTRE BUILDING, NEAR BISHOP PALACE, CHANGANACHERRY, PIN – 686 101.
BY ADVS.
R.MURALEEDHARAN K.P.JOSE PIOUS RESPONDENTS:
1 THE ASSISTANT COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, FIRST CIRCLE, CHANGANACHERRY, PIN – 633 542.
2 THE STATE TAX OFFICER, STATE GST DEPARTMENT, SQUAD NO. V, MATTANCHERRY AT PERUMBAVOOR, PIN – 633 542.
3 THE JOINT COMMISSIONER (APPEALS) STATE GOODS AND SERVICES TAX DEPARTMENT, TAX COMPLEX, PERUMANOOR, ERNAKULAM, PIN – 682 015.
ADV. THUSHARA JAMES, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 39376 OF 2022 2 JUDGMENT The petitioner suffered Ext.P2 order at the hands of the 2nd respondent in proceedings under Section 129 of the CGST / SGST Acts. The first appeal filed by the petitioner before the 3rd respondent was rejected by Ext.P3 order. The remedy of the petitioner lies in filing a further appeal to the Goods and Services Tax Appellate Tribunal in terms of the provisions contained in Section 112 of the CGST / SGST Acts. The petitioner apprehends that since the Tribunal has not been constituted, the bank guarantee furnished by the petitioner as evident from Ext.P8 will be encashed without even affording to the petitioner the opportunity of availing the appellate remedy before the Tribunal.
2.
The learned Senior Government Pleader submits that in order to avail the remedy of appeal to the Goods and Services Tax Appellate Tribunal, the petitioner has to remit amounts in terms of Section 112(8)(b) of the CGST / SGST Acts and that if any interim order is to be given to the petitioner, it must be on condition that the said amount is remitted by the petitioner. It is submitted that the amounts so remitted by the petitioner can be treated as a sufficient compliance of the condition prescribed in Section 112(8)(b) of the CGST / SGST Acts when the petitioner
WP(C) NO. 39376 OF 2022 3 files an appeal, on the constitution of the Tribunal.
3.
Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing for the respondents and having regard to similar orders passed by this Court in other cases, this writ petition will stand disposed of directing that all steps for enforcing payment of amount covered by Ext.P8 bank guarantee shall be kept in abeyance till two months have expired after the constitution of the Goods and Services Tax Appellate Tribunal. This shall however be on condition that the petitioner remits the amounts payable by the petitioner in terms of Section 112(8)(b) of the CGST / SGST Acts and also on condition that the petitioner keeps the Bank guarantee alive. The amounts so paid by the petitioner shall be treated as sufficient compliance of the condition prescribed by that provision while filing an appeal after the GST Appellate Tribunal is constituted.
The writ petition will stand disposed of as above.
Sd/- GOPINATH P.
JUDGE DK
WP(C) NO. 39376 OF 2022 4 APPENDIX OF WP(C) 39376/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE ISSUED UNDER S.129(3) OF THE GST ACT, DATED 16.07.2018 Exhibit P2 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 24.09.2018 Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT IN APPEAL DATED 29.08.2022 Exhibit P4 TRUE COPY OF THE DELIVERY NOTE IN FORM 15 TOGETHER WITH DELIVERY CHALLAN UNDER GST ACT, DATED 11.07.2018 Exhibit P5 TRUE COPY OF THE DELIVERY NOTE IN FORM 15 TOGETHER WITH DELIVERY CHALLAN UNDER GST ACT, DATED 14.07.2018 Exhibit P6 TRUE COPY OF THE VENUE CONFIRMATION CERTIFICATE ISSUED BY M/S.ADLUX MEDICITY AND CONVENTION CENTRE PVT. LTD.
DT.01.06.2018 Exhibit P7 TRUE COPY OF THE GST SALES-D REGISTER MAINTAINED BY THE PETITIONER FOR THE MONTH OF JULY, 2018 Exhibit P8 TRUE COPY OF THE BANK GUARANTEE SUBMITTED BY THE PETITIONER FOR THE DEMAND AS PER EXT. P1 NOTICE DT.17.07.2018 Exhibit P9 TRUE COPY OF THE E-CHALLAN FOR PAYMENT OF 10% OF THE DISPUTED TAX AS PROVIDED UNDER S.107(6)(B) DT.24.08.2022