Rajalakshmi Enterprises vs Additional Chief Secretarya To ... on 13 November, 2020

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Karnataka High Court

Rajalakshmi Enterprises vs Additional Chief Secretarya To ... on 13 November, 2020

Bench: B.M.Shyam Prasad

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13th DAY OF NOVEMBER 2020

                         BEFORE

       THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

           WRIT PETITION NO. 12554/2020 (T-RES)


BETWEEN:

RAJALAKSHMI ENTERPRISES
4/49-4 MARAMANGALA THUPPATTY
STEEL PLANT MAIN ROAD,
SALEM, TAMIL NADU - 636 030
(REPRESENTED BY KALU PURI, PROPRIETOR)
                                     ... PETITIONER
(BY SRI. Y. C. SHIVAKUMAR, ADVOCATE)


AND:


1.     ADDITIONAL CHIEF SECRETARYA TO
       GOVERNMENT FINANCE DEPARTMENT,
       STATE OF KARNATAKA
       VIDHANA SOUDHA
       BENGALURU - 560 001.


2.     THE ADDL COMMISSIONER OF
       COMMERCIAL TAXES (ENFORCEMENT)
       SOUTH ZONE 3RD FLOOR
       COMMERCIAL TAX BUILDING, KORAMANGALA
       BENGALURU - 560 047.


3.     THE COMMERCIAL TAX OFFICER
       (ENFORCEMENT) -16 SOUTH ZONE
                                 2



     COMMERCIAL TAX, BUILDING KORAMANGALA
     BENGALURU - 560 047.
                                    ... RESPONDENTS

(BY SRI. HEMA KUMAR., AGA)


      THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 19.10.2020 BEARING NO. ADCOM
(ENF.)/SZ/CTO(ENF)-16/CBR/NO.16/MOV-11/2020-21 ISSUED
BY THE RESPONDENT-3 FOR CONFISCATION OF GOODS AND
CONVEYANCE UNDER SECTION 130 OF THE KGST/CGST ACTS
2017 READ WITH CORRESPONDENCE SECTION OF IGST ACT,
2017-AS PER ANNEXURE-A- BY ISSUING A WRIT OR ANY OTHER
WRIT OR ORDER IN THE NATURE OF WRIT OF CERTIORARI.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:


                          ORDER

Heard Sri Y.C.Shivakumar, learned counsel for the petitioner and Sri Hema Kumar, learned Additional Government Advocate for the respondents, and perused the impugned order dated 19.10.2020.

2. The Commercial Tax Officer (Enforcement)-16 South Zone, Bangalore by the impugned order has passed orders for confiscation of 'Goods' and 'Conveyance' under 3 Section 130 of the Karnataka Goods and Services Tax Act, 2017 (For short, 'KGST Act') and the Central Goods and Services Tax Act, 2017 (For short, 'CGST Act') as well as Integrated Goods and Services Tax Act, 2017 (For short, 'IGST Act'). The said officer has concluded that there is contravention of Sub-Sections (i) and (v) of the provisions of Section 130(1) of the KGST Act/CGST Act.

3. The learned Counsel for the petitioner submits that the petitioner's transaction viz., purchase of arecanut from Kaduru, Chikkamagaluru District and transfer thereof to the recipient in Delhi is an inter-state transaction and in terms of Section 10 of the IGST Act, the State of Delhi would be the authority to collect taxes. The failure to produce e-way bill by the driver at the time of interception of the vehicle on Huliyal - Shira road enroute to Delhi is a bona fide error. In any event, the officer by the impugned order could not have levied tax, penalty or fine on the market value of the property. 4

4. Sri N.Hema Kumar, learned Additional Government Advocate submits that the petitioner has an alternative remedy under Section 107 of the CGST Act and the time within such alternative remedy could be availed has not expired. On the question whether an appeal could lie under Section 107 of the CGST Act, a Division Bench of this Court in Writ Appeal No.3974/2019 has affirmed that indeed such remedy would be available.

5. In the facts and circumstances of the case, and in the light of the enunciation by the Division Bench in W.A.No.3974/2019, this Court is of the considered view that the petitioner must avail the alternative remedy under Section 107 of the CGST Act. At this point of time, Sri Hema Kumar, learned Additional Government Advocate points out that the authorities have not taken any precipitous action because the appeal time has not lapsed. If this be so, it would be just and reasonable to dispose of this writ petition with liberty to the petitioner to avail alternative remedy under Section 107 of 5 the CGST Act, while directing the authorities not to take precipitous action in the limitation period within which appropriate appeal could be filed by the petitioner.

The writ petition is accordingly disposed of.

SD/-

JUDGE nv

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