Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 1ST DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 WP(C) NO. 23980 OF 2022 PETITIONER:
PHARMACEUTICALS AND MEDICAL DEVISES BUREAU OF INDIA (PMBI) (FORMERLY KNOWN AS BUREAU OF PHARMA PUBLIC SECTOR UNDERTAKINGS OF INDIA) 8/9TH FLOOR, BLOCK E-1, VIDEOCON TOWER, JHANADEWALAN EXTENSION, NEW DELHI-110 055, REPRESENTED BY ITS GENERAL MANAGER MR.RAVI KANT TIWARI.
BY ADVS.
ANIL D. NAIR TELMA RAJU EDATHARA VINEETA KRISHNAN P.K.BIJU RESPONDENTS:
1 THE ASSISTANT STATE TAX OFFICER SQUAD-IV, STATE GST DEPARTMENT, PALAKKAD, PIN-678 001.
2 THE JOINT COMMISSIONER (APPEALS) STATE GST DEPARTMENT (KERALA), PALAKKAD, PIN-678 001.
OTHER PRESENT:
ADV. THUSHARA JAMES (SR.GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 23980 OF 2022 2 JUDGMENT
Petitioner has approached this Court being aggrieved by the fact that in respect of proceedings initiated under Section 129 of the Central Goods and Service Tax/ State Goods and Service Tax Act (CGST/SGST Act) an order under Section 129(3) in Form MOV-09 has not been issued, as a result of which petitioner’s appeal is not maintainable.
2.
The learned counsel appearing for the petitioner submits that this Court has considered similar issues in W.P.(C)Nos.17454/2022 & 17463/2022, where this Court took the view that even in respect of persons who opt to make payment under Section 129(1)(a) of the CGST/SGST Act, the officer concerned is bound to issue an adjudication order under Section 129(3), notwithstanding the provisions contained in sub-section (5) of Section 129.
3.
I have heard the learned Senior Government Pleader also. The learned senior Government Pleader confirms that this Court had considered similar issue in the writ petitions referred to above and this case also can be disposed of in the light of the findings contained in that judgments.
WP(C) NO. 23980 OF 2022 3 4.
Having regard to the aforesaid submission, this writ petition is allowed and Ext.P11 order rejecting the appeal filed by the petitioner under Section 107 of the CGST/SGST Act is set aside. The 1st respondent shall upload an adjudication order in Form MOV-09 under Section 129 (3) of the CGST/SGST Act. He shall also issue a corresponding summary of order/demand in Form DRC-07. This shall be done within a period of 15 days from the date of receipt of a certified copy of this judgment. It will be open to the petitioner to file an appeal in the manner prescribed under Section 107 after the adjudication order is issued as above.
The petitioner shall mark appearance before the 1st respondent at 11.00 A.M on 09-08-2022 and the 1st respondent shall issue an order of adjudication after affording an opportunity of hearing to the petitioner.
Sd/-
GOPINATH P.
ats
JUDGE
WP(C) NO. 23980 OF 2022 4 APPENDIX OF WP(C) 23980/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE INVOICE NO.1940006103 DATED 13.02.2020.
Exhibit P2 TRUE COPY OF THE INVOICE NO.1940006110 DATED 13.02.2020.
Exhibit P3 TRUE COPY OF FORM GST MOV-01 DATED 15.02.2020 ISSUED BY THE 1ST RESPONDENT.
Exhibit P4 TRUE COPY OF THE GST MOV-02 DATED 15.02.2020 ISSUED BY THE 1ST RESPONDENT.
Exhibit P5 TRUE COPY OF THE FORM GST MOV-04 DATED 15.02.2020 ISSUED BY THE 1ST RESPONDENT.
Exhibit P6 TRUE COPY OF THE FORM GST MOV-06 DATED 15.02.2020 ISSUED BY THE 1ST RESPONDENT.
Exhibit P7 TRUE COPY OF THE FORM GST MOV-07 DATED 15.02.2020 ISSUED BY THE 1ST RESPONDENT.
Exhibit P8 TRUE COPY OF THE PAYMENT RECEIPT DATED 21.02.2020 EVIDENCING PAYMENT TO GST DEPARTMENT.
Exhibit P9 TRUE COPY OF THE GST DRC-03 DATED 21.02.2020.
Exhibit P10 TRUE COPY OF THE GST DRC-5 DTED 21.02.2020 ISSUED BY THE 1ST RESPONDENT.
Exhibit P11 TRUE COPY OF THE ORDER DATED 8.12.2021 ISSUED BY THE 1ST RESPONDENT