M/S.Tci Hi Ways PVT. LTD. vs. The Assistant Satate Tax Officer - Kerala High Court, 27 January 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNE AY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942 WP(C).No.2025 OF 2021(C) PETITIONER: M/S.TCI HI WAYS PVT. LTD. BTR BHAVAN, NORTH KALAMASSERY KOCHI 683 104, REPRESENTED BY ITS MANAGER, RAJESH KUMAR. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE ASSISTANT STATE TAX OFFICER SURVEILLANCE SQUAD NO. II, STATE GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM. 2 THE COMMISSIONER OF STATE TAX, STATE GST DEPARTMENT , TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM 695 002. OTHER PRESENT: DR THUSHARA JAMES-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.2025 OF 2021(C) 2 J U D G M E N T The petitioner has approached this Court impugning Exts.P3 to P3(c) notices issued under Section 129 of the Goods and Services Tax (“GST Act” for short). The petitioner says that even though the proceedings impelled through Exts.P3 to P3(c) are illegal, unlawful and unjustified, the 1st respondent is refusing to release the consignment along with the vehicle and therefore, that they have been constrained to approach this Court through this writ petition. They, however, concede that they are willing to offer a bank guarantee for the amounts covered by Exts.P3 to P3(c) and thus pray that the 1st respondent be directed to release the consignment at the earliest, so that they will not be put to further prejudice on account of the fact that the consignor is holding them responsible for each day's delay.

In response, the learned Government Pleader, Smt.Thushara James, submitted that it has been now well settled through the judgment of this Court in W.P.(C)No.17379/2020, that if the petitioner wants to invoke the remedy of release of the consignment on the strength of a bank guarantee, they will have

WP(C).No.2025 OF 2021(C) 3 to approach the 1st respondent itself, so that the said Authority can take a decision thereon, leading to the completion of the adjudication, based on the impugned notices. The learned Government Pleader submitted that, therefore, the petitioner may be directed to approach the 1st respondent appropriately, rather than approaching this Court.

When I consider the afore submissions and asses the ratio in the judgment in W.P.(C)No.17379/2020, it is indubitable that the petitioner has a remedy of approaching the 1st respondent itself by offering a bank guarantee, which Authority, will thereupon, be obligated to consider it for release of the consignment in question. I am therefore, of the view that such a benefit must be given to the petitioner also. In the afore circumstances, I allow this writ petition to the limited extent of leaving liberty to the petitioner to approach the 1st respondent with a bank guarantee for the amounts covered by Exts.P3 to P3(c); and if this is done within a period of three days from the date of receipt of a copy of this judgment, the 1st respondent will consider the release of the consignment and vehicle covered by Exts.P3 to P3(c), without any avoidable delay

WP(C).No.2025 OF 2021(C) 4 and will, thereupon, complete the adjudication under the provisions of the GST Act after affording necessary opportunity of being heard to the petitioner, as expeditiously as is possible but not later than one month from the date on which the bank guarantee is furnished by the petitioner in terms of this judgment. This writ petition is thus disposed of. DEVAN RAMACHANDRAN rp JUDGE

WP(C).No.2025 OF 2021(C) 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF INVOICE ISSUED BY M/S. THE SUPREME INDUSTRIOUS LIMITED TO M/S. BC BUILD WARES (INDIA), PVT.LIMITED, DATED 07.01.2021. EXHIBIT P1 (A) COPY OF INVOICE ISSUED BY M/S. THE SUPREME INDUSTRIOUS LIMITED TO M/S. BC BUILD WARES (INDIA), PVT.LIMITED, DATED 07.01.2021. EXHIBIT P1 (B) COPY OF INVOICE ISSUED BY M/S. THE SUPREME INDUSTRIOUS LIMITED TO M/S. BC BUILD WARES (INDIA), PVT.LIMITED, DATED 07.01.2021. EXHIBIT P1 (C) COPY OF INVOICE ISSUED BY M/S. THE SUPREME INDUSTRIOUS LIMITED TO M/S. BC BUILD WARES (INDIA), PVT.LIMITED, DATED 07.01.2021. EXHIBIT P1 (D) COPY OF INVOICE ISSUED BY M/S. THE SUPREME INDUSTRIOUS LIMITED TO M/S. BC BUILD WARES (INDIA), PVT.LIMITED, DATED 07.01.2021. EXHIBIT P2 COPY OF E-WAY BILL IS GENERATED BY M/S. THE SUPREME INDUSTRIES LIMITED DATED 07.01.2021. EXHIBIT P2 (A) COPY OF E-WAY BILL IS GENERATED BY M/S. THE SUPREME INDUSTRIES LIMITED DATED 07.01.2021. EXHIBIT P2 (B) COPY OF E-WAY BILL IS GENERATED BY M/S. THE SUPREME INDUSTRIES LIMITED DATED 07.01.2021. EXHIBIT P2 (C) COPY OF E-WAY BILL IS GENERATED BY M/S. THE SUPREME INDUSTRIES LIMITED DATED 07.01.2021. EXHIBIT P2 (D) COPY OF E-WAY BILL IS GENERATED BY M/S. THE SUPREME INDUSTRIES LIMITED DATED 07.01.2021. EXHIBIT P3 COPY OF FORM GST MOV -02 IS ISSUED BY THE 1ST RESPONDENT DATED 19.01.2021. EXHIBIT P3 (A) COPY OF FORM GST MOV -04 IS ISSUED BY THE 1ST RESPONDENT DATED 19.01.2021. EXHIBIT P3 (B) COPY OF ORDER DETENTION UNDER SECTION 129 (1) IN FORM GST MOV O6 IS ISSUED BY THE 1ST RESPONDENT DATED 19.01.2021. WP(C).No.2025 OF 2021(C) 6 EXHIBIT P3 (C) COPY OF NOTICE OF DETENTION UNDER SECTION 129 (3) IN FORM GST MOV O7 IS ISSUED BY THE 1ST RESPONDENT DATED 19.01.2021.