M/S. Chris Motors vs. The Chief Commissioner Of Central GST And Excise - Kerala High Court, 17 June 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941 WP(C).No.29758 of 2018 PETITIONER: M/S. CHRIS MOTORS VI/69 A, KATTAKAYAM BUILDING, PALAKKATTUMALA, MARNGATTUPALLY, PALA, KOTTAYAM, REP BY ITS PARTNER, ALEXANDER JOSEPH. BY ADV. BOBBY JOHN RESPONDENTS: 1 THE CHIEF COMMISSIONER OF CENTRAL GST AND EXCISE C.R BUILDING, IS PRESS ROAD, ERNAKULAM. 682021 2 THE SUPERINTENDENT CENTRAL GST AND CENTRAL EXCISE RANGE OFFICE, PALA, III FLOOR, MAREENA TOWERS, KATTAKAYAM ROAD, PALA, KOTTAYAM DISTRICT, PIN-686575. 3 THE ASSISTANT COMMISSIONER AND NODAL OFFICER CGST DEPARTMENT, KOTTAYAM, AMBAKUZHY ARCADE, CMS COLLEGE ROAD, KOTTAYAM, PIN-686001. 4 COMMISSIONER OF STATE GOODS AND SERVICE TAX DEPARTMENT KERALA , TAX TOWER, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM - 695002. 5 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT (REVENUE), CENTRAL SECRETARIAT, NEW DELHI-110001. SRI. AMAL DHARSAN, SC FOR SRI. SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS

WP(C).No.29758 of 2018 2 DR. THUSHARA JAMES, GOVERNMENT PLEADER SRI. P. VIJAYAKUMAR, ASSISTANT SOLICITOR GENERAL OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.29758 of 2018 3 JUDGMENT Heard Sri. Bobby John Pulickaparambil, the learned counsel for the petitioner, and Standing Counsel Sri. Amal Dharsan holding the file for Standing Counsel Sri. Sreelal Warrier.

The petitioner complaining non-consideration of Exts.P5, P5A and P5B hard copy of returns filed by the petitioner, has filed the instant writ petition. The petitioner, in Ext.P4 represented to second respondent to take note of Exts.P5, P5A and P5B, to give due CENVAT credit to petitioner and proceed to consider the assessment. The third respondent filed counter affidavit. Paragraphs 10 and 11 of the counter affidavit read thus:- “10. From the facts stated above, it is evident that the petitioner was not able to file the returns in Form-ER-3 for the period from October 2016 to June 2017 electronically due to technical problems in the system software namely; www.aces.gov.in. Even though the matter was reported to the CBEC – Mitra – Helpdesk by the petitioner and the 2nd respondent the issue remained unresolved and hence the petitioner filed the

WP(C).No.29758 of 2018 4 returns manually for the period before the 2nd respondent.

11.

In the facts and circumstances of the case, it is submitted that the prayer of the petitioner to allow transition of the input tax credit available to them on 30.06.2017 can be allowed.”

Keeping in view the stand now taken by the third respondent, this Court is of the view that it is for respondent Nos. 2 and 3 to consider hard copies of CENVAT credit details now furnished by the petitioner in Exts.P5, P5A and P5B and pass orders within four weeks from the date of receipt of a copy of this judgment.

The learned counsel for the petitioner insists for issuing a positive direction by referring to the stand taken in the counter affidavit by the third respondent. This Court is not convinced or persuaded to straight away issue a direction to give due credit to which the petitioner is entitled upon verification of all records in its behalf. This is the function of the respondents. Therefore, the above order is made.

The petitioner within two weeks appears

WP(C).No.29758 of 2018 5 before respondent Nos. 2 and 3 accompanied by a copy of this judgment along with Exts.P5, P5A and P5B and requests for granting CENVAT credit. The respondents on such appearance and receipt of the copy of this judgment would pass orders as are deemed fit, within two weeks thereafter. S.V.BHATTI JUDGE DCS

WP(C).No.29758 of 2018 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE EMAIL COMMUNICATION DATED 12/07/2017 SENT BY THE PETITIONER TO THE HELP DESK OF SYSTEM ADMINISTRATOR. EXHIBIT P2OF THE COMMUNICATION DATED 02/07/2018 ISSUED BY THE SUPERINTENDENT, CGST RANGE, PALA IS PRODUCED HEREWITH. EXHIBIT P3OF THE ACKNOWLEDGEMENT DATED 29/08/2017, ISSUED BY THE CBEC MITRA HELP DESK TO THE PETITIONER. EXHIBIT P4OF THE REPRESENTATION DATED 27/12/2017 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. EXHIBIT P5OF THE HARD COPY OF RETURN FOR OCT 2016- DEC 2016 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. EXHIBIT P5 AOF THE HARD COPY OF RETURN FOR JAN 2017-MAR 2017 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. EXHIBIT P5 BOF THE HARD COPY OF RETURN FOR APRIL 2017 - JUNE 2017 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT.