Crystal Jewellers vs. The State Of Kerala - Kerala High Court, 25 January 2022

Heard together (2 matters)

WP(C) NO. 29608 OF 2021

TC 38/12

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943 WP(C) NO. 29608 OF 2021 PETITIONER: M/S.CRYSTAL JEWELLERS TC 38/1222, ABDEEN COMPLEX, VALAYAL CHETTY STREET P.O., CHALAI, THIRUVANANTHAPURAM - 695 036, REPRESENTED BY ITS MANAGING PARTNER SADACK THAMPY MOHAMMED IBRAHIM. BY ADVS. S.ANIL KUMAR (TRIVANDRUM) B.PRABHAKARAN SABU C.J RAHUL A. APARNA ANIL NANCY PRABHAKAR RESPONDENTS: 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE ASST. STATE TAX OFFICER (INT.) INTELLIGENCE SQUAD NO.V, STATE GOODS AND SERVICES TAX DEPARTMENT, NEW PUBLIC OFFICE BUILDING, C BLOCK, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM. 3 THE STATE TAX OFFICER (INT.) SQUAD NO.V, STATE GOODS AND SERVICES TAX DEPARTMENT, NEW PUBLIC OFFICE BUILDING, C BLOCK, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033. ADV.JASMINE M.M, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29608 OF 2021 2 BECHU KURIAN THOMAS, J. ----------------------------------------- W.P.(C) No. 29608 of 2021 ---------------------------------------- Dated this the 25th day of January, 2022

JUDGMENT Petitioner challenges Ext.P17 order issued under Section 130 of the CGST Act, 2017. As per the averments in the writ petition, it is noticed that the gold ornaments belonging to the petitioner was intercepted by the respondents on 14.07.2021 and on verification it was realized that there was no document accompanying the goods. There was neither any delivery challan nor any invoice accompanying the goods and hence proceedings under Section 130 of the CGST Act was invoked.

The learned counsel for the petitioner, Adv. S.Anil Kumar, vehemently contented that this is a clear instance where the respondents acted in excess of their juri iction, warranting the invocation of remedy under Article 226 of the Constitution of India. It was submitted that the delivery challan was available in the WP(C) NO. 29608 OF 2021 3 scooter kept nearby the place where the petitioner's staff was intercepted and if an opportunity was granted to recover the said delivery challan, the same would have proved the veracity of petitioner's contentions.

Having heard the arguments of the learned Government Pleader, Adv. M.M. Jasmine, who submitted that all contentions raised by the petitioner are matters of dispute which require an appreciation of facts. The assessing officer had also entered into a finding that there was intent to evade tax in the circumstances. According to the learned Government Pleader this was not a fit case where the remedy under Article 226 is available.

I have considered the rival contentions. On a perusal of the impugned order, I find that several factual aspects have been narrated by the officer, while arriving at a conclusion of 'intent to evade tax'. All those aspects are factual matters which require an appreciation of disputed facts. It is the settled position of law that this Court cannot interfere under Article 226 of the Constitution when there are disputed facts, especially in matters of taxation. Petitioner has an WP(C) NO. 29608 OF 2021 4 alternative and efficacious remedy under Section 107 of the CGST Act to prefer an appeal and therefore, no prejudice would be caused to the petitioner, even.

Accordingly, reserving the liberty of the petitioner to pursue its statutory remedies, this writ petition shall stand dismissed. BECHU KURIAN THOMAS JUDGE DM

WP(C) NO. 29608 OF 2021 5 APPENDIX OF WP(C) 29608/2021 PETITIONER EXHIBITS EXHIBIT P1 COPY OF REGISTRATION CERTIFICATE. EXHIBIT P2 COPY OF DELIVERY CHALAN DATED 17/04/2019. EXHIBIT P2A COPY OF DELIVERY CHALAN DATED 24/07/2019. EXHIBIT P2B COPY OF DELIVERY CHALAN DATED 10/03/2020. EXHIBIT P3 COPY OF INVOICE DATED 17/04/2019 ISSUED BY THE HALL MARKING CENTRE IN RESPECT OF EXT.P2. EXHIBIT P3A COPY OF INVOICE DATED 24/07/2019 ISSUED BY THE HALL MARKING CENTRE IN RESPECT OF EXT.P2A. EXHIBIT P3B COPY OF INVOICE DATED 10/03/2020 ISSUED BY THE HALL MARKING CENTRE IN RESPECT OF EXT.P2(B). EXHIBIT P4 COPY OF DELIVERY CHALAN DATED 14/07/2021. EXHIBIT P5 COPY OF MAHASSAR DATED 14/07/2021 PREPARED BY THE 2ND RESPONDENT. EXHIBIT P6 COPY OF MOV-01 DATED 14/07/2021 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7 COPY OF MOV-02 DATED 14/07/2021 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 COPY OF MOV-04 DATED 14/07/2021 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 COPY OF DETENTION ORDER IN NOV - 06 DATED 14/07/2021. EXHIBIT P10 COPY OF NOTICE DATED 14/07/2021 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P11 COPY OF STATEMENT DATED 15/07/2021

WP(C) NO. 29608 OF 2021 6 OF SRI.MOHAMED ASHRAF. EXHIBIT P12 COPY OF REPLY DATED 30/07/21 FILED BY THE PETITIONER. EXHIBIT P13 COPY OF RELEVANT PAGE OF STOCK REGISTER. EXHIBIT P14 COPY OF REVISED NOTICE DATED 9/08/2021 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P15 COPY OF REPLY DATED 25/08/2021 FILED BY THE PETITIONER. EXHIBIT P16 COPY OF REPLY DATED 25/09/2021 FILED BY THE PETITIONER. EXHIBIT P17 COPY OF ORDER DATED 18/10/2021 ISSUED BY THE 3RD RESPONDENT. RESPONDENTS EXHIBITS : NIL //// PA TO JUDGE