Kamalesh Sen vs. The Assistant State Tax Officer - Kerala High Court, 07 January 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 7TH DAY OF JANUARY 2022 / 17TH POUSHA, 1943 WP(C) NO. 29966 OF 2021 PETITIONER: KAMALESH SEN AGED 26 YEARS S/O.AMBA LAL SEN, RESIDING AT WARD NO.6, SONY MOHALLA, DHOSAR, BHILWARA, RAJASTHAN, PIN- 311 802. BY ADV R.RAMADAS RESPONDENT: THE ASSISTANT STATE TAX OFFICER 24 X 7 MOBILE SQUAD AT KOYILANDY, STATE G.S.T.DEPARTMENT, KOZHIKODE - 673 001. OTHER PRESENT: GP -JASMINE.M.M THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 29966 OF 2021 2 BECHU KURIAN THOMAS, J ................................................ W.P.(C) NO.29966 OF 2021 …........................................ Dated this the 7th day of January, 2022 JUDGMENT Petitioner challenges the proceedings initiated under Section 129 as well as under Section 130 of the Central Goods and Service Tax Act 2017 (for short the Act).

Petitioner claims to be a goldsmith and a native of Rajasthan. While he was travelling through Kerala for taking orders from jewellers, he carried with him certain gold jewellery for display purposes. However, assuming that, he was carrying narcotics or other contraband articles, the Sub-Inspector of Police, Koilandy Police Station, detained the petitioner on 22/11/2021 and on physical search, found the petitioner carrying 250.800gm of gold ornaments.

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Accordingly, the respondent was intimated, who came and seized the gold ornaments and thereafter, issued Ext.P5 order of detention under Section 129(1) of the CGST Act on 22/11/2021. In the meantime, petitioner submitted a reply to the notice of detention on 26/11/2021. However, while handing over the reply notice to the respondent, a notice for confiscation under GST MOV-10, was issued to the petitioner dated 24/11/2021. 4. The learned counsel for the petitioner Sri.R.Ramdas vehemently contended that, there is absolutely no material to assume any intention to evade the tax as contemplated under Section130 and hence the proceedings so initiated, fails to satisfy the ingredients of Section 130 of the CGST Act. He further submitted that petitioner is desirous of obtaining release of the goods on payment of the

WP(C) NO. 29966 OF 2021 4 applicable tax and penalty contemplated under Section 129(1)of the CGST Act.

The learned

Government

Pleader Smt.M.M.Jasmine on the other hand contended that, petitioner was not carrying any documents to prove the veracity of the transport of gold ornaments for display purposes and the respondent bona fide felt that, there was an intention to evade tax. It was further submitted that the juri iction under Article 226 of the Constitution of India cannot be invoked when there are disputed questions of fact and hence the remedy of the petitioner is to obtain an order of adjudication as contemplated under Section 130. The learned Government Pleader further submitted that petitioner was in fact heard twice by the respondent and that orders are not being issued due to the pendency of this writ petition.

I have considered the rival contentions.

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It is noticed from Ext.P8, that the respondent has given a reason for initiating proceedings under Section 130. The correctness or otherwise of the said reason is not a matter which can be considered by this Court under Article 226 of the Constitution of India, especially in the light of the fact that, petitioner was not in possession of any documents contemplated under law. Whether the transport of gold was with an intention to evade tax or not is a matter which requires appreciation of disputed facts and hence the statutory authority will have to consider the same after appreciating the facts. In view of the above, I am of the opinion that, this is not a fit case for invoking the extraordinary juri iction under Article 226 of the Constitution of India. Hence there is no merit in this writ petition.

Since it is submitted that the petitioner was heard sometime in the past in order to render justice

WP(C) NO. 29966 OF 2021 6 to both sides, the respondent shall afford an opportunity of a fresh hearing to the petitioner on 17/1/2022 at 11 am. The petitioner shall treat this judgment as sufficient notice for the hearing and appear before the respondent on the date so fixed and appropriate orders shall be passed thereon, in accordance with law. The writ petition is dismissed with the above observations. BECHU KURIAN THOMAS JUDGE AJM

WP(C) NO. 29966 OF 2021 7 APPENDIX OF WP(C) 29966/2021 PETITIONER’S EXHIBITS : Exhibit P1OF THE SEIZURE MAHAZAR DATED 22/11/2021 PREPARED BY THE POLICE INSPECTOR, KOYIANDY. Exhibit P2OF THE FORM GST MOV-01 DATED 22/11/2021 ISSUED BY THE RESPONDENT. Exhibit P3OF THE FORM GST MOV-02 DATED 22/11/2021 ISSUED BY THE RESPONDENT. Exhibit P4OF THE PHYSICAL VERIFICATION REPORT DATED 22/11/2021 ISSUED BY THE RESPONDENT. Exhibit P5OF THE ORDER OF DETENTION U/S 129(1) OF THE CENTRAL GOODS AND SERVICE TAX ACT, 2017 AND THE STATE GOODS SERVICE TAX ACT, 2017, DATED 22/11/2021 ISSUED BY THE RESPONDENT. Exhibit P6OF THE REPLY DATED 26/11/2021 SUBMITTED BY THE PETITIONER TO EXT.P5 DETENTION ORDER. Exhibit P7OF NOTICE IN FORM GST MOV-10 PROPOSING CONFISCATION OF GOODS, ISSUED BY THE RESPONDENT RECEIVED BY THE PETITIONER ON 26/11/2021. Exhibit P8OF THE NOTICE DATED 24/11/2021 U/. 130 OF THE ACT ISSUED BY THE RESPONDENT RECEIVED BY THE PETITIONER ON 26/11/2021. Exhibit P9OF THE REPLY OF THE RESPONDENT SERVED ON THE PETITIONER TO PETITIONER'S EXT.P6 LETTER, RECEIVED BY THE PETITIONER ON 26/11/2021. Exhibit P10OF THE DETAILED REPLY DATED

WP(C) NO. 29966 OF 2021 8 29/11/2021 SUBMITTED BY THE PETITIONER TO THE RESPONDENT TO EXTS.P7 AND P8 NOTICES. RESPONDENT’S EXHIBITS : NIL

AJM //// PA TO JUDGE