Noushad Allakkat vs The State Tax Officer (Wc) on 4 October, 2018

[Cites 6, Cited by 3]

Kerala High Court

Noushad Allakkat vs The State Tax Officer (Wc) on 4 October, 2018

Bench: Dama Seshadri Naidu

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
   THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940
                      WP(C).No. 32237 of 2018
PETITIONER:


            NOUSHAD ALLAKKAT
            AGED 38 YEARS
            PROPRIETOR,
            M/S. HIGH LINE TRADERS,
            21/354, VALIYAVARAMBU ROAD,
            KOTTAPPADI,
            MALAPPURAM DISTRICT.

            BY ADVS.
            SRI.HARISANKAR V. MENON
            SMT.K.KRISHNA
            SMT.MEERA V.MENON

RESPONDENTS:
     1     THE STATE TAX OFFICER (WC)
           STATE GST DEPARTMENT,
           MANJERI - 676 121.

      2     THE ASST. TAX OFFICER
            SQUAD NO. VII, STATE GST DEPARTMENT, PALAKKAD - 678
            001.

      3     STATE TAX OFFICER
            SQUAD NO. VII, STATE GST DEPARTMENT, PALAKKAD - 678
            001

      4     STATE OF KERALA
            REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
            GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -
            695 001

      5     THE MANAGER
            INDIAN BANK, MALAPPURAM BRANCH, DOWN HILL P.O.,
            MALAPPURAM - 676 505.
 WP(C).No. 32237 of 2018             2




OTHER PRESENT:
            GP. DR. THUSHARA JAMES., SRI. S EASWARAN


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:




                             JUDGMENT

The petitioner, a dealer in timber, faces proceedings under the Goods and Services Tax Act. Purchased in Tamil Nadu and being brought to Kerala, the timber was detained under Section 129 of the Act, for 'the supplier's failure to collect IGST'. The petitioner has got the goods released on his furnishing the bank guarantee, though.

2. At any rate, faced with adverse orders, the petitioner wants to file a statutory appeal. But before it can prosecute the appeal, the 4th respondent threatens, the petitioner apprehends, to invoke the bank guarantee. So it has filed this writ petition.

WP(C).No. 32237 of 2018 3

3. According to the petitioner's counsel, the appellate forum itself was very recently created, and still the procedural mechanism has not yet been fully put in place. In the meanwhile, if the respondents invoke the bank guarantee, the petitioner's right to statutory remedy becomes illusory.

4. The petitioner also seeks another relief: "To declare that Rule 140(2) of the CGST Rules 2017 is not to apply as against detention of the goods under Section 129 of the CGST Act."

5. The petitioner's counsel has brought to my notice a judgment of this Court in Commercial Tax Officer v. Madhu1. This Court has held that the dealer ought to produce the goods at the time of adjudication. Here, the petitioner has not produced; so it suffered penalty. As the judgment emanates from a Division Bench, it is not in my remit to re- examine the precedential proposition. At the same time, it is entirely open for the petitoner to distinguish the judgment and assert its case before the appellate forum. 1 (2017) 105 VST 244 (Kerala) WP(C).No. 32237 of 2018 4

6. The learned Government Pleader, on the other hand, has submitted that the petitioner has an efficacious alternative remedy and, so, it can approach the appellate authority.

7. Heard Sri Harisankar V. Menon, the learned counsel for the petitioner, and Smt.Jasmine, the learned Government Pleader appearing for the respondents.

8. 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.P7 impugned order. But it may be inequitable for the respondent authorities to invoke the bank guarantee before the limitation to appeal ends.

9. 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 appellate authority to get an interim protection, pending appeal.

WP(C).No. 32237 of 2018 5

Thus, the Writ Petition stands disposed of.

DAMA SESHADRI NAIDU JUDGE APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF ORDER IN FORM GST MOV-01 ISSUED ISSUED BY THE 2ND RESPONDENT DATED 30.08.2018.

EXHIBIT P1 A COPY OF ORDER IN FORM GST MOV-02 ISSUED ISSUED BY THE 2ND RESPONDENT DATED 30.08.2018.

EXHIBIT P1 B COPY OF ORDER IN FORM GST MOV-04 ISSUED ISSUED BY THE 2ND RESPONDENT DATED 30.08.2018.

EXHIBIT P1 C COPY OF ORDER IN FORM GST MOV-06 ISSUED ISSUED BY THE 2ND RESPONDENT DATED 30.08.2018.

EXHIBIT P2 COPY OF REPLY FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 04.08.2018.

EXHIBIT P3 COPY OF ORDER ISSUED BY THE 2ND RESPONDENTDATED 08.08.2018.

EXHIBIT P3 A COPY OF ORDER ISSUED BY THE 2ND RESPONDENT 08.08.2018.

EXHIBIT P4 COPY OF BANK GUARANTEE SUBMITTED BY THE PETITIONER ISSUED BY THE 5TH RESPONDENT BANK DATED 08.08.2018.

WP(C).No. 32237 of 2018 6

EXHIBIT P4 A COPY OF BOND IN FORM GST MOV 08 SUBMITTED BY THE PETITIONER DATED 08.08.2018.

EXHIBIT P5 COPY OF NOTICE ISSUED BY THE 3RD RESPONDENT DATED 08.08.2018.

EXHIBIT P6 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 15.09.2018.

EXHIBIT P6 A COPY OF FORM GSTR 3B FILED BY KANAKARAJAN MEKALA.

EXHIBIT P6 B COPY OF FORM GSTR 3B FILED BY KANAKARAJAN MEKALA.

EXHIBIT P7 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 30.09.2018.

EXHIBIT P8 COPY OF JUDGMENT IN W.P.(C) NO. 23251/18 OF THIS HON'BLE COURT DATED 16.07.2018.


RESPONDENTS' EXHIBITS

NIL

// TRUE COPY //                 P.A. TO JUDGE

SD

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