Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 21ST DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 WP(C) NO. 11081 OF 2021 PETITIONER:
DURAI KANNAN AGED 51 YEARS PROPRIETOR, SREE SELVA GANAPATHY MILK PRODUCTS, 1/217C, KOTTAYIL ROAD, THRISSUR-680503.
BY ADV TOMSON T.EMMANUEL RESPONDENTS:
1 ASSISTANT STATE TAX OFFICER SQUAD NO.V, STATE GOODS AND SERVICES TAX COMPLEX, THEVARA, KOCHI-682 015.
2 STATE TAX OFFICER, SQUAD NO.V, STATE GOODS AND SERVICES TAX COMPLEX, THEVARA, KOCHI-682 015.
3 STATE OF KERALA, STATE GOODS AND SERVICES TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001, 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 THE MANAGER, VRL LOGISTICS LTD., ELOOR, COCHIN-682 032.
6 JOINT COMMISSIONER (INT.), STATE GOODS AND SERVICES TAX DEPARTMENT, EDAPPALLY, KOCHI-682 024.
W.P.(C)No.11081/2021 2 BY ADVS.
GOVERNMENT PLEADER SHRI T.K.RAJESH KUMAR,CGC OTHER PRESENT:
ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.11081/2021 3 JUDGMENT Petitioner has approached this Court being aggrieved by the fact that certain goods belonging to the petitioner were detained in proceedings initiated under Section 129 of the Central Goods and Services Tax Act/State Goods and Services Tax Act (CGST/SGST Act).
2.
According to the petitioner the proceedings were totally unwarranted and without jurisdiction. It is submitted that the detention is illegal as the goods were accompanied by all necessary documents and were being transported in full compliance with the GST laws. It is submitted that when this writ petition came up for consideration before this Court on 18-05-2021, there was an interim order directing the 1st respondent to provisionally release the goods in terms of provisions contained in Section 129 of the CGST/SGST Act. It is pointed out that on the same day (that is on 18-05-2021), the 1st respondent passed a final order under Section 129 of the CGST/SGST Act, without even affording to the petitioner an opportunity of being heard.
3.
Learned Senior Government Pleader referred to the
W.P.(C)No.11081/2021 4 counter affidavit filed in this Court and states that despite opportunity being given to the petitioner, the petitioner did not appear before the 1st respondent and therefore the 1st respondent issued the final order under Section 129 of the CGST/SGST Act. It is submitted that taking into consideration the scheme of the provisions of Section 129 and 130 of the CGST/SGST Act prior to its amendment, the proceedings have thereafter been continued under the provisions of Section 130 of the CGST/SGST Act. It is submitted that the petitioner cannot complain of violation of principles of natural justice taking into consideration the averments in paragraph 4 of the counter affidavit filed in this Court.
4.
The learned counsel for the petitioner in reply submits that the petitioner will pay the amount payable by the petitioner for a provisional release of goods in terms of Section 129 of the CGST/SGST Act under protest, if this Court were to grant an opportunity to the petitioner to contest the matter before the 1st respondent.
5.
Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing for the respondents and taking into consideration
W.P.(C)No.11081/2021 5 the fact that the final order under Section 129 of the CGST/SGST Act was issued without affording to the petitioner an opportunity of being heard, I am of the opinion that Ext.P10 order can be set aside and the matter can be remitted to the 1st respondent for fresh consideration in accordance with law.
The petitioner shall remit the amounts payable by the petitioner (in terms of Form No. MOV-07) under protest within a period of one week from today. On such amount being remitted, the matter shall be reconsidered by the 1st respondent as above, after considering all the contentions taken by the petitioner and after affording to the petitioner an opportunity of being heard.
Writ petition is disposed of as above.
Sd/- GOPINATH P.
JUDGE ats
W.P.(C)No.11081/2021 6 APPENDIX OF WP(C) 11081/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF TAX INVOICE NO.051 DATED 5.4.2021 ISSUED BY M/S.KR MANIPILLAI ENTERPRISES, TIRUPATI, FOR INTERSTATE SALE OF LOW COST PLASTIC TOY, AGAINST 18% IGST, BILLED IN QUANTITY IN BAGS.
EXHIBIT P2 TRUE COPY OF CONSOLIDATED E-WAY BILL NO.1013 2154 6607 DATED 5.4.2021 GENERATED AT 07.35 PM BY THE TRANSPORTER.
EXHIBIT P3 TRUE COPY OF LORRY RECEIPT NO.1051490025 DATED 5.4.2021 ISSUED 5TH RESPONDENT TRANSPORTING AGENCY, MENTIONED WITH EXT.P1 TAX INVOICE AND P2 E-WAY BILL.
EXHIBIT P4 TRUE COPY OF FORM GST-MOV-04 PHYSICAL VERIFICATION REPORT DATED 15.4.2021 ISSUED BY 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF FORM NO.MOV-06 DATED 15.4.2021 ISSUED BY 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF FORM NO.MOV-07 DATED 17.4.2021 ISSUED BY 1ST RESPONDENT, DEMANDING IGST AND PENALTY ON THE VALUE ESTIMATED.
EXHIBIT P7 TRUE COPY OF REPLY DATED 26.4.2021 SUBMITTED AGAINST EXT.P6 NOTICE, ACKNOWLEDGED BY 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF LETTER OF SELF DECLARATION DATED 22.4.2021 ISSUED BY THE SUPPLIER, PRODUCED BEFORE RESPONDENTS 1 AND 2 ALONG WITH ET.P7 REPLY.
EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 27.11.2019 IN WP(C) NO.31965 OF 2019 PASSED BY THIS HON'BLE COURT ON SIMILAR SET OF FACT.