Thomas Rubber (INDIA) Private Limited vs. The Assistant State Tax Officer(Intelligence) - Kerala High Court, 10 August 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUE AY, THE 10TH DAY OF AUGUST 2021 / 19TH SRAVANA, 1943 WP(C) NO. 16144 OF 2021 PETITIONER: M/S THOMASON RUBBER (INDIA) PRIVATE LIMITED KURUVAMUZHY P.O., ERUMELI, KOTTAYAM DISTRICT, PIN-686509, REPRESENTED BY ITS MANAGING DIRECTOR, M.T.THOMAS. BY ADVS. HARISANKAR V. MENON MEERA V.MENON RESPONDENTS: 1 THE ASSISTANT STATE TAX OFFICER(INTELLIGENCE) SQUAD NO.V, STATE GOODS AND SERVICES TAX DEPARTMENT, THRISSUR-680004. 2 THE COMMISSIONER OF STATE TAX, STATE GST DEPARTMENT, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM-695002. 3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. SMT. THUSHARA JAMES-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 16144/21 2 JUDGMENT The petitioner has approached this Court impugning Exts.P3 and P3(a) issued by the 1st respondent and for a direction to the said respondent to release the vehicle detained under it.

The learned counsel for the petitioner – Sri.Harisankar V. Menon, submits that his client has already preferred Ext.P5 reply to Exts.P4 and P4(a) proceedings, but that without considering the same in its proper perspective, a notice under Section 122(1)(2) of the Goods and Service Tax Act, 2017 (hereinafter referred to as 'the Act' for short) has been issued. He asserts that, as is evident from Ext.P6, the Authority has taken a view that only a physical verification report in MOV-04 and order for detention in MOV-06 have been issued. He, therefore, contends that the

WPC 16144/21 3 proceedings now initiated against his client, through Ext.P6, cannot find favour in law.

Sri.Harisankar V. Menon, then submitted that, in any event of the matter, going by Section 129 of the Act, action can be taken only against detention and seizure of goods and conveyance in transit. He argued that since it is conceded that the vehicle in question did not have any commodity loaded in it, any action under Section 129 of the Act will become illegal and thus prayed that same be interdicted.

In response, the learned Senior Government Pleader – Smt.Thushara James, submitted that the proceedings initiated through Ext.P6 is under Section 122(1)(2) of the Act; while the proceedings, which is assailed by the petitioner, is under Section 129 thereof. She says that, therefore, when Ext.P6 only requires the petitioner to appear before the competent Authority on 12.08.2021, there is no reason for

WPC 16144/21 4 them to have rushed to this Court. She added that, in any event of the matter, any further action under Section 129 of the Act will be initiated only after the petitioner is properly notified, pursuant to completion of the proceedings under Ext.P6. 5. In reply, the learned counsel for the petitioner submitted that his client is more concerned about the action proposed under Section 129 of the Act particularly because Ext.P5 explanation clearly shows that the vehicle in question had no consignment loaded onto it. He, however, submitted that his client is willing to appear before the competent Authority pursuant to Ext.P6; but prayed that said Authority be directed to issue the proceedings culminating there from, before initiating any action under Section 129 of the Act.

I find that the stage of interference by this Court in any of the matters, which are in

WPC 16144/21 5 controversy, has not yet commenced because, as rightly stated by the learned Senior Government Pleader, Ext.P6 is only a notice under Section 122(1)(2) of the Act. Obviously, therefore, the petitioner must submit themselves to the enquiry being conducted by the competent Authority, for which purpose, they have been asked to appear at 11 a.m. on 12.08.2021. I do not propose to interdict the same, but only that sufficient safeguards be fixed, so that the petitioner's apprehensions may be allayed. In the afore circumstances, I direct the petitioner to comply with Ext.P6; with a further direction to the respondents to ensure that before any further action under Section 129 of the Act is initiated against the petitioner, they will be properly notified and their explanation made in Ext.P5 specifically adverted to - particularly that, in the case of a vehicle without any consignment on it, said provision will not apply.

WPC 16144/21 6 This writ petition is thus ordered. RR DEVAN RAMACHANDRAN JUDGE

WPC 16144/21 7 APPENDIX OF WP(C) 16144/2021 PETITIONER EXHIBITS Exhibit P1 COPY OF INVOICE NO.BB106/21-22 ISSUED BY THE PETITIONER DATED 31.07.2021. Exhibit P2 COPY OF E-WAY BILL NO.521282451851 GENERATED BY THE PETITIONER DATED 31.07.2021. Exhibit P3 COPY OF ORDER OF DETENTION UNDER SECTION 129(1) IN FORM GST MOV 06 ISSUED BY THE 1ST RESPONDENT DATED 02.08.2021. Exhibit P3(A) COPY OF PHYSICAL VERIFICATION REPORT IN FORM GST MOV-04 ISSUED BY THE 1ST RESPONDENT DATED 03.08.2021. Exhibit P4 COPY OF TAX INVOICE NO.9 ISSUED BY M/S.A.R.RUBBERS KARNATAKA TO THE PETITIONER DATED 31.07.2021. Exhibit P4(A) COPY OF E-WAY BILL NO.151360058139 GENERATED BY M/S.A.R.RUBBERS DATED 31.07.2021. Exhibit P5 COPY OF LETTER ISSUED BY THE PETITIONER BEFORE THE GST OFFICER, SQUAR NO.V, SGST DEPARTMENT, THRISSUR DATED 03.08.2021. Exhibit P5(A) COPY OF LETTER ISSUED BY THE PETITIONER BEFORE THE GST OFFICER, SQUAD NO.V, SGST DEPARTMENT, THRISSUR DATED 03.08.2021. Exhibit P6 COPY OF NOTICE ISSUED BY THE ASST.COMMISSIONER (INTELLIGENCE), SQUAD NO.V, SGST DEPARTMENT, THRISSUR DATED 05.08.2021.