Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940
WP(C).No. 23251 of 2018
PETITIONER(S)
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M/S. BERGER PAINTS INDIA LTD.
DOOR NO.III/835 C, 1ST FLOOR,
VALIYARA CHAMBERS,
K.K.ROAD, CHEMBUMUKKU, COCHIN-682 021,
REPRESENTED BY ITS ADMINISTRATION EXECUTIVE,
SRI.BENNY SEBASTIAN.
BY ADV.SRI.TOMSON T.EMMANUEL
RESPONDENT(S):
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1. STATE TAX OFFICER,
INVESTIGATION BRANCH,
STATE GOODS & SERVICES TAX DEPARTMENT,
ASRAMAM P.O., KOLLAM-691 013.
2. ASSISTANT STATE TAX OFFICER,
STATE GOODS & SERVICES TAX
DEPARTMENT, SQUAD NO.II, ASRAMAM P.O.,
KOLLAM-691 013.
3. THE ASSISTANT COMMISSIONER,
STATE GOODS & SERVICES TAX
DEPARTMENT, SPECIAL CIRCLE,
MATTANCHERRY AT ALUVA,PIN-683 101.
4. THE BRANCH MANAGER,
ICICI BANK LTD,
20TH SIR R. N. MUKHERJEE ROAD,
KOLKATTA-700 001.
5. STATE OF KERALA
STATE GOODS & SERVICES TAX DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001.
REPRESENTED BY ITS SECRETARY TO GOVERNMENT.
TS
WP(C).No. 23251 of 2018 (F)
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6. GOVERNMENT OF INDIA,
DEPARTMENT OF REVENUE,
CENTRAL BOARD OF EXCISE AND
CUSTOMS, NEW DELHI-110 001,
REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, MINISTRY OF FINANCE.
7. DEPUTY COMMISSIONER (APPEALS),
STATE GOODS & SERVICES TAX DEPARTMENT,
THEVARA, COCHIN-682 015.
R1 TO R3,R5 & R7 BY GOVERNMENT PLEADER SMT.THUSHARA
BY ADV. SRI.RAJESH B., SC
R4 BY SRI.LAL K.JOSEPH
R6 BY SREELAL N. WARRIER, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-07-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TS
WP(C).No. 23251 of 2018 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF CERTIFICATE OF REGISTRATION DATED
32AABCB0976E1Z4 DATED 21-09-2017 ISSUED TO
PETITIONER UNDER THE SGST AND CGST ACT AND
RULES WITH EFFECT FROM 01-07-2017.
EXHIBIT P2 TRUE COPY OF DELIVERY CHELLAN NO.133-00024-18SHBR
DATED 05-06-2018 RAISED ON PETITIONER'S DEALER
OUTLET IN M/S CHOICE PAINTS & HARDWIRES,
KOLLAM, FOR THE TRANSPORT PAINT MIXING
MACHINERY WITH ACCESSORIES.
EXHIBIT P3 TRUE COPY OF E-WAY BILL NO.501034065028 DATED 05-06-2018
PREPARED ON THE BASIS OF EXT.P2 DELIVERY
CHELLAN, ACCOMPANIES WITH THE TRANSPORT.
EXHIBIT P4 TRUE COPY OF NOTICE NO.OR/03/2018-19/ST/2017 DATED
05-06-2018 ISSUED BY 2ND RESPONDENT U/S.129 OF
STATE GOODS AND SERVICE TAX ACT, 2017,
DEMANDING TAX AND PENALTY UNDER CGST AND
SGST ACT AND RULES, MERELY BY SUSPICION
EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 08-06-2018 PASSED BY THIS
HON'BLE COURT IN WPC NO.18855 OF 2018, IN
DIRECTING TO RELEASE THE GOODS DETAINED AND TO
CONDUCT ADJUDICATION.
EXHIBIT P6 TRUE COPY OF BANK GUARANTEE NO.0006BGR0029619 DATED
11-06-2018 FOR RS. 48,456/- FURNISHED BEFORE 2ND
RESPONDENT IN ACCORDANCE WITH EXT.P5 JUDGMENT.
EXHIBIT P6(A) TRUE COPY OF BOND FOR RELEASE OF GOODS SEIZED FOR
RS.48,456/- FURNISHED BEFORE 2ND RESPONDENT
ALONG WITH EXT.P6
EXHIBIT P7 TRUE COPY OF ARGUMENT NOTE DATED 26-06-2018
SUBMITTED BEFORE 1ST RESPONDENT WHILE
PRODUCING BOOKS OF ACCOUNTS FOR ADJUDICATION.
EXHIBIT P8 TRUE COPY OF ORDER DATED 30-06-2018 IMPOSING PENALTY
U/S. 129 OF SGST ACT, 2017 M, COMMUNICATED TO
PETITIONER ON 09-07-2018, BY 1ST RESPONDENT,
MECHANICALLY, WITH A NON SPEAKING ORDER,
WITHOUT ESTABLISHING A CLEAR CASE OF EVASION
OF TAX.
RESPONDENT(S)'EXHIBITS - NIL
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/TRUE COPY/
PS TO JUDGE
TS
23.07.2018
DAMA SESHADRI NAIDU, J.
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W.P.(C). No.23251 of 2018
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Dated this the 16th day of July, 2018
JUDGMENT The petitioner, a company dealing in paints, faces proceedings under the Central Goods and Services Tax Act. As paint mixing machinery was seized by the authorities, the petitioner provided Ext.P6 bank guarantee as well as Ext.P6(a) security bond, before the 1st respondent, and had the machinery and the transport vehicle released.
2.At any rate, faced with adverse orders, the petitioner contemplates invoking the appellate remedy. Now, the petitioner has filed this Writ Petition ventilating his grievance that before the petitioner could invoke the appellate remedy, the 1st respondent is threatening to invoke the bank guarantee. According to the petitioner's counsel, the appellate forum itself was very
-2- recently created and still the procedural mondalities have yet to be finalised. In the meanwhile, if the respondents invoke the bank guarantee, the petitioner's right to statutory remedies becomes illusory.
3.The learned Government Pleader, on the other hand, has submitted that the petitioner has an efficacious alternate remedy and, so, can approach the appellate authority.
4.Heard the learned counsel for the petitioner as also the learned Government Pleader.
5.Indeed, in terms of Section 107 of the Act, read with Rule 108 of the Goods and Services Tax Rules, to appeal, the petitioner has three months' time from the date of Ext.P8 impugned order. The 7th respondent is the appellate authority. Because the petitioner has three months' time to appeal, it may be inequitable for the authority to invoke the bank guarantee before the -3- petitioner could exhaust its appeal remedy—within the period of limitation, though.
6.I, therefore, dispose of this Writ Petition holding that the respondent will not invoke the bank guarantee for three months. In the meanwhile the petitioner may make all efforts before the 7th respondent to get an interim protection, pending appeal — adjudication. Thus the Writ Petition stands disposed of. DAMA SESHADRI NAIDU JUDGEP.A to Judge
