Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 18TH DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 WP(C) NO. 32951 OF 2022 PETITIONER:
GODREJ & BOYCE MFG.CO.LTD.
AGED 55 YEARS 2ND FLOOR, ANGELS ARCADE, COCHIN UNIVERSITY P O;
SOUTH KALAMASSERY, KOCHIN. ERNAKULAM DISTRICT, REPRESENTED BY ITS SENIOR MANAGER FINANCE, SRI. REMESH PAI V P., PIN - 682022 BY ADV TOMSON T.EMMANUEL RESPONDENTS:
1 ASSISTANT STATE TAX OFFICER STATE GOODS AND SERVICES TAX DEPARTMENT, SQUAD NO.III, KOZHIKODE, PIN - 673006 2 STATE TAX OFFICER STATE GOODS AND SERVICES TAX DEPARTMENT, SQUAD NO.III, KOZHIKODE, PIN - 673006 3 STATE OF KERALA STATE GOODS & SERVICE TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTED BY SECRETARY TO GOVERNMENT, PIN - 695001 4 COMMISSIONER (GST) MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, NEW DELHI, PIN - 110001 5 JOINT COMMISSIONER (APPEALS), STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM, COCHIN, PIN - 682015 6 CENTRAL BANK OF INDIA PIROJSHA NAGAR, LBS MARG, VIKHROLI, MUMBAI, REPRESENTED BY ITS BRANCH MANAGER, PIN - 400079 ADV. THUSHARA JAMES (SR GP), ADV. K .M. ANEESH (SC CENTRAL BANK OF INDIA) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) No.32951/2022 -2- J U D G M E N T The petitioner has approached this Court being aggrieved by the fact that the State Tax Appellate Tribunal has not been constituted in the State of Kerala under CGST/SGST Act and therefore, the petitioner is unable to avail his remedy under Section 112 of CGST/SGST Act. It is submitted that the petitioner was proceeded against for a technical default and the petitioner has already provided a bank guarantee for the amount that was demanded from the petitioner. It is submitted that, in similar cases, the first appellate authority has already granted relief to other companies and refers to appellate order dated 7.3.2022 in GSTA No.24/2022 on the file of the Joint Commissioner (Appeals), State Goods and Services Tax Department, Kerala, Palakkad.
2.
The learned Senior Government Pleader submits that since the State Tax Appellate Tribunal has not been constituted, the encashment of bank guarantee provided by the petitioner can be kept in abeyance provided the petitioner keeps alive the said bank guarantee for the time required. It is also submitted that the time for preferring an appeal to the Tribunal has already expired in terms of sub section 1 of Section 112 of the CGST/SGST Act.
3.
Having regard to the facts and circumstances of the case and taking note of the fact that the State Tax Appellate Tribunal has not been constituted in terms of Section 112 of the CGST/SGST Act, this writ petition is disposed of directing that the bank guarantee furnished by the petitioner shall not be invoked for a period of three months from the date on which the State Tax Appellate Tribunal is constituted, provided the petitioner keeps alive the bank guarantee for
W.P (C) No.32951/2022 -3- the above said period. It is made clear that on constitution of the State Tax Appellate Tribunal, it is for the petitioner to seek appropriate relief from that Tribunal and the petitioner will not be entitled to the benefit of this judgment after three months from the date on which the said Tribunal is constituted.
Sd/- GOPINATH P.
JUDGE AMG
W.P (C) No.32951/2022 -4- APPENDIX OF WP(C) 32951/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF TAX INVOICE NO.771/12006137 DATED 29.05.2018 RAISED BY THE PETITIONER FOR SALES MADE TO A DEALER AT KOZHIKODE.
Exhibit P2 TRUE COPY OF E-WAY BILL NO.5210 3356 5273 DATED 01.06.2018, GENERATED AGAINST EXT-P1 TAX INVOICE.
Exhibit P3 TRUE COPY OF NOTICE DATED 02.06.2018 ISSUED U/S.129(3) OF THE GST ACT BY 1ST RESPONDENT.
Exhibit P4 TRUE COPY OF BANK GUARANTEE FOR RS.2,68,288/- ISSUED BY 6TH RESPONDENT, SUBMITTED BEFORE 1ST RESPONDENT FOR RELEASE OF GOODS.
Exhibit P5 TRUE COPY OF ORDER DATED 05.12.2018 PASSED BY 2ND RESPONDENT IMPOSING PENALTY.
Exhibit P6 TRUE COPY OF STATUTORY APPEAL SUBMITTED U/S.107 OF SGST ACT, BEFORE 1ST APPELLATE AUTHORITY UNDER GST ACT, AGAINST EXT P5 ORDER.
Exhibit P7 TRUE COPY OF ORDER DATED 30.07.2022 PASSED BY 5TH RESPONDENT, IN CONFIRMING EXT P5 ORDER IMPOSING PENALTY, COMMUNICATED TO PETITIONER ON 20.09.2022.
Exhibit P8 TRUE COPY OF REPORTED JUDGMENT OF THE HON'BLE SUPREME COURT IN ASSISTANT COMMISSIONER VS. SATHYAM SHIVA PAPER PVT. LTD; (SLP NO.21132 OF 2021 DATED 12.01.2022).