Renjilal Damodaran vs. The Assistant State Tax Officer - Kerala High Court, 13 November 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942 WP(C).No.24819 OF 2020(B) PETITIONER/S: RENJILAL DAMODARAN PROPRIETOR, M/S. DAMU AND SONS SALES CORPORATION, BACK SIDE OF K N S HOSPITAL, PULAMON P.O., KOTTARAKKARA, KOLLAM DISTRICT. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA RESPONDENT/S: 1 THE ASSISTANT STATE TAX OFFICER, SQUAD NO.VIII, SGST DEPARTMENT ERNAKULAM, KOCHI-682 015. 2 THE COMMISSIONER OF STATE TAX, STATE GST DEPARTMENT, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM-695 002. OTHER PRESENT: GP:DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.24819 OF 2020(B) 2 JUDGMENT The petitioner has approached this Court challenging Ext.P4 series of notices issued to him under Section 129(3) of the CGST Act. From the said notices it is apparent that the defect noticed by the respondent was that the validity of the e-way bill that accompanied the transportation of the goods had expired by the time of detention.

The learned counsel for the petitioner would place reliance on the table under Rule 138(10) of the CGST Rules to contend that, inasmuch as the cargo carried in the instant case fell under the description of ‘multimodal shipment in which at least one leg involves transport by ship’, he must get the benefit of the time permitted in serial number 3 in the table under Rule 138(10) for the purposes of computing the validity period of the e-way bill. It is his alternate contention that as per the 3rd proviso to Rule 138(10), the validity of an e-way bill can be extended within eight hours from the time of its expiry and hence in the instant case the petitioner had time till 8 am on 06.11.2020 for extending the validity of the e-way bill, whereas the detention was at 1.30 am on 06.11.2020. It is submitted, therefore, that there was no valid ground for detention of the goods and the goods ought to be released without further delay.

I have heard Sri.Harisankar V.Menon, the learned counsel for the petitioner and also Dr.Thushara James, the learned Government Pleader for the respondents.

On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find it difficult to accept the contentions of the learned counsel for the petitioner. In my view, the classification in the table under

WP(C).No.24819 OF 2020(B) 3 R.138(10) is essentially between ‘over dimensional cargo’ and ‘other cargo’. In both the categories of cases, the cargo can be transported either by road or through multimodal shipment in which at least one leg involves transport by ship. The number of days which would count towards the validity period of the e-way bill, for cargo other than over dimensional cargo, would vary depending upon whether the distance traversed is upto 100 km or more. While one day validity is given for distance traversed upto 100 km, an additional day is granted for every 100 kms or part thereof traversed thereafter. Similarly, in the case of over dimensional cargo, one day validity is granted for up to 20 km traversed, and an additional day for every 20 km or part thereof traversed thereafter. I cannot accept the contention of the learned counsel for the petitioner that, irrespective of whether his cargo can be categorised as over dimensional cargo or otherwise, he must get the benefit of the more beneficial provision so long as the mode of shipment is multimodal and in which at least one leg involves transport by ship. To interpret the provision as suggested would do violence to its clear language.

Secondly, as regards the contention of the learned counsel based on the 3rd proviso to R.138(10), while it may be a fact that the validity of the e-way bill could have been extended within eight hours from the time of its expiry, it is not in dispute that the petitioner did not choose to do so, and there is no merit in the contention that he did not extend the validity of the e-way bill because by that time the goods had already been detained by the respondent. The mere fact that the respondent had detained the goods did not, in any manner, prevent the petitioner from extending the validity period of the e-way bill, and producing a copy of the extended e-way bill before the authority for the purposes of seeking a clearance of the goods.

In the result, I find that the detention of the goods and the vehicle in the instant case cannot be said to be unjustified.

WP(C).No.24819 OF 2020(B) 4 Taking note of the request of the learned counsel for the petitioner, I permit the petitioner to clear the goods and the vehicle on furnishing a bank guarantee for the amount demanded in the impugned notices. The respondents shall, thereafter, proceed to pass the final order in GST MOV 09, after hearing the petitioner. The learned Government Pleader shall communicate the gist of the directions in this judgment to the respondents so as to enable the petitioner to get clearance of the goods and the vehicle on the conditions directed above. A.K.JAYASANKARAN NAMBIAR JUDGE WP(C).No.24819 OF 2020(B) 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF E-WAY BILL FOR TRANSPORTATION TO KERALA BY SHIP FROM MUNDRA PORT IN GUJARAT TO KOCHI PORT. EXHIBIT P1 A COPY OF E-WAY BILL FOR ONWARD TRANSPORTATION FROM KOCHI PORT TO THE PLACE OF BUSINESS OF THE PETITIONER AT KOTTARAKKARA. EXHIBIT P2 COPY OF INVOICE NO.MMT5218 ISSUED BY M/S. KOSTA SHIPPING LLP. EXHIBIT P3 COPY OF FORM GST MOV-01 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3 A COPY OF FORM GST MOV-02 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4 COPY OF PHYSICAL VERIFICATION REPORT IN FORM GST MOV 04 BY 1ST RESPONDENT. EXHIBIT P4 A ORDER OF DETENTION UNDER SECTION 129(1) IN FORM GST MOV 06 BY 1ST RESPONDENT. EXHIBIT P4 B ORDER OF DETENTION UNDER SECTION 129(3) IN FORM GST MOV 07 BY 1ST RESPONDENT.