M/S Up And Up Elevators vs. State Of Kerala - Kerala High Court, 19 January 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR TUE AY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942 WP(C).No.1441 OF 2021(E) PETITIONER: M/S UP AND UP ELEVATORS TP23/840C, VARANAD, CHERTHALA, ALAPPUZHA DISTRICT, KERALA, PIN-688539, REPRESENTED BY ITS MANAGING PARTNER, KUNCHERIYA LONAPPAN. BY ADV. SRI.BOBBY JOHN RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN- 695001. 2 THE COMMISSIONER OF STATE GOODS AND SERVICE TAX DEPARTMENT, KERALA, TAX TOWER, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM, PIN-695002. 3 THE ASSISTANT STATE TAX OFFICER, SQUAD NO.VIII, SGST DEPARTMENT, ERNAKULAM, COMMERCIAL TAX COMPLEX, THEVARA, PIN-682015. 4 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT (REVENUE), CENTRAL SECRETARIAT, NEW DELHI, PIN-110001. GP-SMT.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.1441 OF 2021(E) 2 JUDGMENT Dated this the 19th day of January 2021 Heard both sides.

The learned counsel for the petitioner argued that the petitioner is a partnership firm doing business in the name and style of UP & UP elevators at Cherthala in Alapuzha. He argued that on 11.01.2021, the petitioner purchased 4 numbers of Control Panels from M/s. Propower Systems Pvt. Ltd., Bangalore after remitting the requisite IGST also. Those goods were then transported from Bangalore to Cochin through M/s. Kallada Logistics. In submission of the learned counsel for the petitioner, goods were accompanied by proper e-way bill. In transit, goods were shifted from one vehicle to another vehicle for further transportation from Ernakuam to Cherthala. However, on 15.01.2020, the 3rd respondent intercepted the vehicle and verified the documents. The learned counsel for petitioner accepted the fact that e-way bill which was with the goods sought to be transported had expired on 14.01.2020, but argued that in view of proviso clause to Rule 138 of the Central Goods and Services Rules, 2017, there is no necessity for having e-way bill, as the goods were to be transported for a distances up to 50 kms only, within the State. As such, there was no necessity to update the e-way bill. It is further

WP(C).No.1441 OF 2021(E) 3 argued that omission to extend the e-way bill is only a minor offence, as the goods were covered by proper tax invoice and as such, action of detention of goods is totally unjustified.

The learned Government Pleader argued that the petition as framed and filed is not maintainable, as Form GST MOV-02 has already been issued and relied on judgment of this court in WP(C) No.17379/2020 decided on 12.01.2021. The learned Government Pleader further relied on Rule 138(8) of GST Rules, 2017 to demonstrate that goods must be accompanied with e-way bill.

I have considered the submissions so advanced and perused the materials placed before me.

Undisputedly, goods which were sought to be transported from Bangalore to Cherthala came to be intercepted by the GST authorities on 15.01.2021 and at that time, the authorities found that e-way bill had expired on 14.01.2020. Therefore, goods were detained and detention order came to be issued. Perusal of the order at Ext.P7 detaining the goods makes it clear that the goods were detained while in transit because, validity of the e-way bill had expired and it was not re-validated within the prescribed time. As a consequence, notice under Section 129(3) of the GST Act came to be issued with a direction to the petitioner authority to appear before the respondent

WP(C).No.1441 OF 2021(E) 4 authority on 24.01.2021 for showing cause as to why necessary action as contemplated under Section 129 of the GST Act should not be taken.

Thus, the matter is at present resting at the show cause notice. Considering the fact that goods were being transported from one State, ie, Karnataka to another State ie, Kerala, Rule 138(5) relied by the petitioner has no application to the fact situation in the instant case. Rule 138(8) of the said Rules makes copy of the e-way bill mandatory during the course of conveyance of goods. The scheme 129 of the GST Act 2017 makes it clear that the petitioner is having opportunity of hearing before the authority under the GST Act in the wake of receipt of notice under Section 129(3) by him. The petition as such is devoid of merit and the same is accordingly rejected. A.M.BADAR N //// PA to Judge JUDGE

WP(C).No.1441 OF 2021(E) 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE REGISTRATION CERTIFICATE, DATED 21.11.2018, ISSUED TO THE PETITIONER IN FORM GST REG-06. EXHIBIT P2OF THE GST INVOICE NO.802, DATED 11.01.2021, ISSUED BY M/S PROPOWER SYSTEMS PVT. LTD, BANGALORE-76 TO THE PETITIONER. EXHIBIT P3OF THE E-WAY BILL NO.161289451425, DATED 11.01.2021, GENERATED WITH RESPECT TO THE AFORESAID GOODS. EXHIBIT P4OF THE ORDER OF PHYSICAL VERIFICATION OF THE GOODS, DATED 15.01.2021,ISSUED BY THE THIRD RESPONDENT. EXHIBIT P5OF THE STATEMENT OF THE DRIVER/PERSON IN CHARGE OF THE GOODS AND CONVEYANCE, DATED 15.01.2021. EXHIBIT P6OF THE PHYSICAL VERIFICATION REPORT, DATED 15.01.2021, ISSUED BY THE THIRD RESPONDENT. EXHIBIT P7OF THE DETENTION ORDER UNDER SECTION 129(1) OF THE CGST ACT/SGST ACT, DATED 15.01.2021, ISSUED BY THE THIRD RESPONDENT. EXHIBIT P8OF THE NOTICE UNDER SECTION 129(3) OF THE CGST ACT/SGST ACT, DATED 15.01.2021, ISSUED BY THE THIRD RESPONDENT.