Vinod Kumar vs. The Asst. State Tax Officer
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNE AY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941 WP(C).No.33511 OF 2019(L) PETITIONER/S: EXIDE INDUSTRIES LIMITED, CALICUT, POOLENKARA, MANAKADAVU ROAD, KOZHIKODE - 673019, REPRESENTED BY ITS AUTHORISED SIGNATORY JOSHY JOSEPH. BY ADVS. SRI.RAJESH NAMBIAR SRI.N.R.SAJ RESPONDENT/S: ASSISTANT STATE TAX OFFICER, SURVEILLANCE SQUAD NO.III, STATE GST DEPARTMENT, WAYANAD @ MANANTHAVADY - 673121. R1 BY GOVERNMENT PLEADER OTHER PRESENT: SMT.JASMINE.M.M, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.33511/2019 & 935/2020 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNE AY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941 WP(C).No.935 OF 2020(N) PETITIONER/S: VINOD KUMAR, AGED 44 YEARS S/O RAGHAVAN NAIR, MEKKAMVALLY, KUNNAMANGALAM,KOZHIKODE BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 THE ASST. STATE TAX OFFICER, SURVEILLANCE SQUAD NO.III, STATE GST DEPARTMENT, WAYANAD AT MANANTHAVADY-670 645 2 THE COMMISSIONER OF COMMERCIAL TAXES, STATE GST DEPARTMENT,TAX TOWER, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM-695 002 3 M/S. EXIDE INDUSTRIES LIMITED, POOLANKARA, PANTHEERANKAVU, KOZHIKODE-673 019, REPRESENTED BY ITS MANAGER OTHER PRESENT: SMT.JASMINE.M.M, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.33511/2019 & 935/2020 3 ALEXANDER THOMAS, J. ----------------------------------------- W.P.(C.) Nos. 33511 of 2019 & 935 of 2020 ------------------------------------------------ Dated this the 15th day of January, 2020 JUDGMENT Since the petitioner in W.P.(C.) No. 33511/2019 is a consignor of the goods that has been transported in the vehicle under the registered ownership of the petitioner in W.P.(C.) No. 935/2020. Hence, both these cases are inter connected and so these matters are disposed of on the basis of a common judgment. W.P.(C.) No. 33511 of 2019 The prayers in the writ petition filed under Article 226 of the Constitution of India are as follows : (i) Issue a writ of Certiorari or any other writ order or direction, quashing Ext.P1 notice of detention of goods and Ext.P2 notice for demand for security. (ii) (iii) Issue a writ of mandamus or any other writ, order or direction directing the respondent to release the goods of the petitioner detained as Ext.P1 notice forthwith, on the petitioner executing a simple bond without sureties. (iv) Grant such other relief as may be prayed for and as this Hon'ble Court may deem fit in the circumstances of the case.”
The grievance projected by the petitioner in this case is regarding the detention of goods which are belonging to the petitioner is merely on the reasoning that the vehicle number shown in the e-way bill is not matching with the actual vehicle number and that hence, Ext.P1 notice
WP(C).Nos.33511/2019 & 935/2020 4 detaining the goods of the petitioner and Ext.P2 notice demanding to pay security is arbitrary, illegal and unwarranted in the facts and circumstances of this case.
Heard Sri.Rajesh Nambiar, learned counsel appearing for the petitioner and Smt.M.M.Jasmine, learned Government Pleader appearing for respondents.
This Court had requested the learned Government Pleader to get specific instruction in this matter and also as to whether the goods detained could be released to the petitioner, subject to the petitioner furnishing bank guarantee to the tune of the appropriate value and to the satisfaction of the official concerned.
It appears that the respondent do not appear to have much serious objection to the said course of action inasmuch as this Court has consistently passed such orders in similar cases. It is pointed out by the learned counsel for the petitioner that as per the internal page 2 of impugned Ext.P2 notice,, tax and penalty demanded is Rs.1,44,684/- [viz, Rs.36,171/- (Central tax) + Rs.36,171/- (State tax) + Rs.36,171/- (penalty) + Rs.36,171/- (penalty) = Rs.1,44,684/-], whereas in internal page 3 of Ext.P2 notice, the amount demanded is Rs.2,58,364/- [Rs.1,29,182/- (Central tax) + Rs.1,29,182/- (State tax) = Rs.2,58,364/-]. Further, it is pointed out that the figure shown in page 2 of Ext.P2 notice is under Sec.129(1)(a) of the GST and whereas the figure shown in page 3 of Ext.P2 is under Sec.129(1)
WP(C).Nos.33511/2019 & 935/2020 5 (b) of the said Act and that the former is in respect of a scenario involving the owner and that the latter is in respect of involving a person other than owner and that only one of the two could be lawfully demanded in terms of the mandate contained in Sec.129(1)(c) of the GST Act and that to avoid any further condition, the petitioner is prepared to offer bank guarantee to the value of the higher among the two amounts, viz, Rs.2,58,364/-. The said suggestion made by the learned counsel appearing for the petitioner appears to be fair and reasonable. Accordingly, it is ordered that the respondent will forthwith release the goods detained as per Ext.P1 order to the petitioner or his authorised representative in case, bank guarantee to the tune of higher of the abovesaid two amounts is duly furnished on behalf of the petitioner.
Heard Sri. Harisankar V Menon, learned Advocate appearing for the registered owner of the vehicle, who is the petitioner in the connected W.P.(C) No. 935/2020 would submit on the basis of instructions of the party that his party is willing that his seized vehicle may be released to the petitioner or his authorized representative. Accordingly, it is ordered that the seized vehicle and the goods detained as per impugned Ext.P2 order shall be forthwith released by the 1st respondent to the petitioner or his authorised representative, in case the bank guarantee to the tune of higher of the abovesaid two amounts is duly furnished on behalf of the petitioner.
WP(C).Nos.33511/2019 & 935/2020 6 With these observations and directions, the above W.P.(C.) will stand disposed of. W.P.(C.) No. 935 of 2019 The prayers in the writ petition filed under Article 226 of the Constitution of India are as follows : (i) To direct the 1st respondent to release the goods carriage vehicle bearing Registration No.KL-57/T-6100 under the Section 129 of the Act by the issue of a writ of mandamus or such other writ or order or direction. (ii) To grant the petitioner such other incidental reliefs including the costs of these proceedings.
Sri. Harisankar V Menon, learned counsel appearing for the petitioner would submit on the basis of instructions of the party that the petitioner herein is the registered owner of the vehicle, in which the goods in question was transported and that in view of the judgment rendered today (15.01.2020) in W.P.(C.) No.33511/2019 filed by the consignor, no further orders are required in this writ petition (C) and the matter may be closed accordingly. Recording the abovesaid submission made by the petitioner herein, the above W.P.(C.) will stand disposed of. ALEXANDER THOMAS, JUDGE SKS
WP(C).Nos.33511/2019 & 935/2020 7 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ORDER OF DETENTION UNDER SECTION 129(1) OF THE SGST ACT DATED 30.11.2019. EXHIBIT P2OF THE SHOW CAUSE NOTICE DATED 30.11.2019 UNDER SECTION 129(3) OF THE SGST ACT EXHIBIT P3OF THE INVOICE NO.1595687782 DATED 27.11.2019. EXHIBIT P4OF THE E-WAY BILL NO.521150882576 DATED 30.11.2019. WP(C).Nos.33511/2019 & 935/2020 8 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF AADHAR CARD OF THE PETITIONER EXHIBIT P2 COPY OF REGISTRATION CERTIFICATE OF THE VEHICLE NO KL-57/T-6100 REGISTERED IN THE NAME OF THE PETITIONER EXHIBIT P2(A) COPY OF GOODS CARRIAGE PERMIT IN FORM P.GD ISSUED BY GOVERNMENT OF KERALA EXHIBIT P3 COPY OF ORDER IN FORM GST MOV-02 ISSUED BY THE 1ST RESPONDENT EXHIBIT P3 (A) COPY OF ORDER IN FORM GST MOV-04 ISSUED BY THE 1ST RESPONDENT EXHBIT P3 (B) COPY OF ORDER IN FORM GST MOV-06 ISSUED BY THE 1ST RESPONDENT EXHIBIT P3 (C) COPY OF ORDER IN FORM GST MOV-07 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 COPY OF OBJECTION FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.