Shine Jewellry v. Assistant State Tax Officer (Intelligence) - Kerala High Court, 24 Nov 2022

Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.

THURSDAY, THE 24TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944 WP(C) NO. 19897 OF 2021 PETITIONER:

SHINE JEWELLRY DOOR NO.V/255, MAIN ROAD, KOORKENCHERY CENTER, THRISSUR - 680 007 REPRESENTED BY ITS MANAGING PARTNER, SRI. NIJU V. S.

BY ADV TOMSON T.EMMANUEL RESPONDENTS:

1 ASSISTANT STATE TAX OFFICER (INTELLIGENCE) STATE GOODS AND SERVICES TAX DEPARTMENT, SQUAD NO.II, IDUKKI AT THODUPUZHA - 685 584.

2 STATE TAX OFFICER (INT.)

STATE GOODS AND SERVICES TAX DEPARTMENT, SQUAD NO.II, IDUKKI AT THODUPUZHA - 685 584.

3 STATE OF KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001., REPRESENTED BY SECRETARY TO GOVERNMENT.

4 COMMISSIONER (GST) GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, GST POLICY WING, NEW DELHI - 110 001.

5 UNION OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, NEW DELHI - 110 001, REPRESENTED BY ITS UNDER SECRETARY.

BY ADVS.

GOVERNMENT PLEADER KAVERY S THAMPI JOSEPH RONY JOSE, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No.19897/2021 2 JUDGMENT Petitioner has approached this Court challenging Ext.P10 order issued under the provisions of Section 129 read with Section 130 of the Central Goods and Services Tax / State Goods and Services Tax Act(CGST/SGST Act).

It is the case of the petitioner that Ext.P10 order is illegal and without jurisdiction. Pending consideration of the writ petition before this Court, the petitioner has filed an appeal challenging Ext.P10 order before the Joint Commissioner (Appeals), Ernakulam and the said appeal is pending consideration.

Learned counsel appearing for the petitioner states that the appeal is to be heard by the Joint Commissioner (Appeals), Thrissur as per the information now conveyed to the petitioner.

Having regard to the fact that the appeal filed by the petitioner against Ext.P10 order is pending consideration before the First Appellate Authority, I am of the opinion that this writ petition can be disposed of directing the First Appellate Authority to consider and pass orders on the appeal

W.P.(C)No.19897/2021 3 filed by the petitioner against Ext.P10, after affording to the petitioner an opportunity of being heard within a period of one month from the date of receipt of a certified copy of this judgment. If the appeal filed by the petitioner before the Joint Commissioner (Appeals), Ernakulam is to be transmitted to the Joint Commissioner (Appeals) Thrissur for the purposes of consideration, the same shall be done and final orders shall be passed in the appeal, as directed above and within the time specified.

Sd/-

GOPINATH P.

JUDGE ats

Exhibit P2 TRUE COPY OF DELIVERY CHELLAN NO.DC/7 DATED 19.07.2021 RAISED BY PETITIONER FOR TAKING 609.040 GRAMS OF NEW GOLD ORNAMENTS FOR SELECTION PURPOSE AT THODUPUZHA IN BIKE KL 08 BA 4847, THROUGH SHRI JOJU P. C.

Exhibit P3 TRUE COPY OF FORM GST MOV-01, GST MOV - 02, GST MOV-04 AND GST MOV - 06 DATED 19.07.2021 ISSUED BY 1ST RESPONDENT, IN DETAINING THE GOODS U/S.129(1) OF GST ACT.

Exhibit P3(a) TRUE COPY OF NOTICE DAED 19.07.2021 ISSUED U/S.130(1)(V) OF THE GST ACT 2017, BY 2ND RESPONDENT, PROPOSING TO CONFISCATE THE DETAINED GOODS IN EXT. P3, ISSUED IN THE NAME OF STAFF OF PETITIONER FIRM.

Exhibit P4 TRUE COPY OF REPLY DATED 02.08.2021 SUBMITTED BEFORE 2ND RESPONDENT AGAINST EXT. P3 AND P3(A) NOTICES.

Exhibit P4(a) TRUE COPY OF GSTR1 AND GSTR-3B SUBMITTED BY PETITIONER FOR JUNE 2021.

Exhibit P4(b) TRUE COPY OF STATEMENT DATED 19.07.2021 GIVEN BY STAFF OF PETITIONER, SUBMITTED ALONG WITH EXT. P4.

Exhibit P4(c) TRUE COPY OF REGISTRATION CERTIFICATE OF BIKE HAVING REGISTRATION NO.KL 08 BA 4847 OWNED BY MR. JOJU P. C., PRODUCED ALONG WITH EXT. P4 REPLY BEFORE 2ND RESPONDENT.

Exhibit P5 TRUE COPY OF SUMMONS DATED 03.08.2021 ISSUED TO PETITIONER BY 2ND RESPONDENT CALLING BOOKS OF ACCOUNTS.

W.P.(C)No.19897/2021 5 Exhibit P6 TRUE COPY OF LETTER DATED 16.08.2021 SUBMITTED BEFORE 2ND RESPONDENT AGAINST EXT. P5 SUMMONS, AFTER ENTERING APPEARANCE.

Exhibit P6(a) TRUE COPY OF LETTER IN THE FORM OF AN AFFIDAVIT DATED 16.08.2021 SUBMITTED BY SRI JOJU P. C., BEFORE 2ND RESPONDENT, IN CONTINUATION TO STATEMENT DATED 19.07.2021.

Exhibit P7 TRUE COPY OF RECEIPT DATED 16.08.2021 ISSUED BY 2ND RESPONDENT IN RETAINING BOOKS OF ACCOUNTS AGAINST EXT. P5 SUMMONS.

Exhibit P8 TRUE COPY OF NOTICE DATED 18.08.2021 ISSUED U/S.130 OF THE CGST AND KSGST ACT ISSUED TO PETITIONER FIRM BY 2ND RESPONDENT IN DEMANDING TAX, PENALTY, CESS, PENALTY AND FINE.

Exhibit P9 TRUE COPY OF REPLY DATED 27.08.2021 SUBMITTED BEFORE 2ND RESPONDENT AGAINST EXT.P8 NOTICE, PROPOSING CONFISCATION.

Exhibit P9(a) TRUE COPY OF LETTER DATED 21.07.2021 RECEIVED FROM M/S CHERKOTTU FASHION JEWELLERY, THODUPUZHA RECEIVED BY SPEED POST, PRODUCED BEFORE 2ND RESPONDENT ALONG WITH EXT. P9 REPLY.

Exhibit P9(b) TRUE COPY OF CIRCULAR NO.41/15/2018-GST DATED 13.04.2018 IN PRESCRIBING PROCEDURE FOR INTERCEPTION ISSUED BY 4TH RESPONDENT.

Exhibit P9(c) TRUE COPY OF RELEVANT PAGES OF REPORTED DECISION PASSED BY THE HON'BLE HIGH COURT OF GUJARAT IN SIMILAR SET OF FACTS.

Exhibit P9(d) TRUE COPY OF RELEVANT PAGES OF FINANCE ACT, 2021 PASSED BY CENTRAL GOVERNMENT PUBLISHED IN EXTRA ORDINARY GAZETTE OF INDIA, IN AMENDING SEC. 129 AND 130 OF CGST ACT.

Exhibit P9(e) TRUE COPY OF RELEVANT PAGES OF KERALA FINANCE ACT, 2021 PASSED ON THE BASIS OF EXT. P11 ON 12.08.2021 IN AMENDING SEC. 129 AND 130 OF SGST ACT.

W.P.(C)No.19897/2021 6 Exhibit P10 TRUE COPY OF ORDER DATED PASSED BY 2ND RESPONDENT IN CONFORMING EXT. P8 PROPOSAL FOR CONFISCATION.

Exhibit P11 TRUE COPY OF JUDGMENT DATED 25.11.2010 IN WP(C) NO.32908 OF 2010 PASSED BY THIS HON'BLE COURT.

Exhibit P12 TRUE COPY OF CIRCULAR NO.128/47/2019-GST DATED 23.12.2019 ISSUED BY COMMISSIONER (GST.INV.), CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, NEW DELHI.

Exhibit P12(a) TRUE COPY OF CIRCULAR NO.8/2020 DATED 04.08.2020 ISSUED BY COMMISSIONER OF STATE TAX, THIRUVANANTHAPURAM.