Husky Injection Molding Systems (INDIA) Private Limited vs. The Commissioner Of State Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON TUE AY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940 WA.No. 210 of 2019 AGAINST THE ORDER/JUDGMENT IN WP(C) 41535/2018 of HIGHCOURT APPELLANT:/PETITIONER HUSKY INJECTION MOLDING SYSTEMS(INDIA) PRIVATE LIMITED CHENNAI,HAVING REGISTERED OFFICE AT PLOT NO. P47, 8TH AVENUE, DOMESTIC TRAFFIC AREA, MAHINDRA WORLD CITY, NAHAM SUB POST, ANJUR VILLAGE, CHENGALPET TALUK, KANCHIPURAM DISTRICT, TAMIL NADU, PIN 603 004 REP.BY MR. VALLIAPPA NAGARAJAN, MANAGER LOGISTICS AND TRADE COMPLIANCE, AGED 56 YRS. S/O. RM VV VALIAPPAN BY ADVS. SRI.RAJESH NAIR SRI.JOSEPH PRABAKAR RESPONDENTS/RESPONDENTS: 1 THE COMMISSIONER OF STATE TAX KERALA GST DEPARTMENT TAX TOWER, KARAMANA THIRUVANANTHAPURAM 695002 2 ASST.COMMISSIONER (INT) PALAKKAD, KERALA GST DEPARTMENT PALAKKAD 678 001 3 DEPUTY COMMISSIONER OF STATE TAX, PALAKKAD 678001 4 ASST. STATE TAX OFFICER SQUAD NO.1 KERALA GST DEPARTMENT PALAKKAD 678 001 OTHER PRESENT: SR GP SRI V.K.SHAMSUDHEEN FOR RESPONDENTS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

W.A 210/2019 2 J U D G M E N T Vinod Chandran, J Sri.Joseph Prabhakar, who appears for the appellant, would submit that the issue insofar as release of goods and vehicle by way of Bank Guarantee is covered by a judgment of this Division Bench itself, produced at Annexure-A1. However, the learned Single Judge, on the submission of the learned Government Pleader, had directed that,for remitting the amount temporary registration will be permitted. However, the appellant is not ready to make remittance of money as such, but undertakes to furnish Bank Guarantee.

learned

Counsel Sri.Joseph Prabhakar also raise a contention on the basis of Section 130 of the Kerala Goods and Services Tax Act, 2017 (“Act” for short). Whether

W.A 210/2019 3 the failure to remit tax and penalty as provided under Section 129 of the Act, would lead to confiscation of goods under the provisions of Section 130. We are afraid that the time for raising such a contention has not arisen, since as of now the Department has not proceeded under Section 130. We gave Sri.Joseph Prabhakar the choice to withdraw the Writ Petition and challenge the Section 130 proceedings, when it is taken up or to furnish Bank Guarantee. The learned Counsel would then submit that; let there be an interim order granting release of the goods on furnishing of Bank Guarantee and the larger issue could be considered in the Writ Appeal or the Writ Petition itself. However, we are afraid, such course would not be commendable especially when a Bank Guarantee is given, eventually on final orders being passed either the Bank Guarantee would be released or

W.A 210/2019 4 enforced by the Department. In either case, there does not arise a failure to remit tax and penalty under Section 129 and that would not lead to a proceeding under Section 130. In such circumstance, we are not inclined to keep the matter pending. We, however, make it clear that on furnishing the Bank Guarantee for tax and penalty as provided under Rule 141 of the Central Goods and Services Tax Rules, 2017, and simple bond without sureties for the value of the goods, the goods and the vehicle shall be released expeditiously. Writ Appeal disposed of. K.VINOD CHANDRAN JUDGE ASHOK MENON JUDGE

W.A 210/2019 5 APPENDIX APPELLANT'S ANNEXURES ANNEXURE-A1 COPY OF THE JUDGMENT PASSED BY THIS COURT IN WRIT APPEAL NO.1640/2018 DATED 31.7.2018. ANNEXURE-A2 COPY OF THE JUDGMENT DATED 14.12.2018 PASSED IN WP(C) NO.40801/2018 BY THE LEARNED SINGLE BENCH OF THIS COURT. jg