Varahamurthi Flexirub ... vs State Tax Officer Squad-Vii
2021 Latest Caselaw 5573 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                       WP(C).No.3900 OF 2021(J)


PETITIONER:

               VARAHAMURTHI FLEXIRUB INDUSTRIES PVT.LTD.,
               S F NO.205, PADUVAMPALI, SUTUR TALUK, COIMBATORE,
               TAMIL NADU-641 659, REPRESENTED BY ITS SENIOR
               ACCOUNTANT AND AUTHORISED SIGNATORY A.KODEESWARAN.

               BY ADV. SRI.PREMJIT NAGENDRAN

RESPONDENTS:

      1        STATE TAX OFFICER SQUAD-VII
               OFFICE OF THE DEPUTY COMMISSIONER OF STATE TAX,
               INTELLIGENCE KERALA SGST DEPARTMENT,
               PALAKKAD-678 001.

      2        BRANCH MANAGER,
               STATE BANK OF INDIA, ANNAUR BRANCH, SF NO.280/1,
               SATHY MAIN ROAD, ANNUR, COIMBATORE -641 653.


OTHER PRESENT:

               SMT.THUSHARA JAMES, GOVT. PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.3900/2021                   2


                            JUDGMENT

Dated this the 16th day of February 2021

Heard both sides. The petitioner, who has suffered an order

of confirmation of penalty at the hands of the respondent-State

Tax Officer, is challenging the action of the said authority in

directing the 2nd respondent-Bank to invoke bank guarantee and

to forward the demand draft of the value of the said bank

guarantee to the 1st respondent.

2. Learned counsel for the petitioner has rightly pointed out

the provisions of Section 107 of the Goods and Service Tax Act

which provide for pre deposit. He also relied on Section 78 of the

said Act to demonstrate that the petitioner has time of three

months for depositing the amount as per the assessment. With

this, learned counsel submitted that the direction contained in the

order at Ext.P3 to the 2 nd respondent directing the said

respondent to encash the bank guarantee and forward the

demand draft of the value of the bank guarantee to the

1st respondent is per se illegal. It is further argued that the

petitioner is intending to file an appeal within two or three weeks

though limitation for filing such statutory appeal is upto

15.05.2021.

3. Learned Government Pleader opposed the writ petition.

4. Keeping in mind the provisions of Sections 78 and 107 of

the GST Act, this writ petition deserves to be allowed with the

following directions:

The 2nd respondent shall not comply with the directions of

the 1st respondent to encash bank guarantee and to forward the

amount under the bank guarantee by demand draft to the

1st respondent and the said direction is quashed and set aside.

However, the petitioner shall continue the bank guarantee till

filing of the appeal. The parties to act on authenticated copy of

this judgment.

Sd/-

A.M.BADAR

JUDGE

smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A COPY OF THE JUDGMENT OF THIS COURT IN WPC NO.21626 OF 2020 DATED 14.10.2020.

EXHIBIT P2 A COPY OF THE BANK GUARANTEE NO.050712BG0000212 ISSUED FOR THE PETITIONER BY THE SECOND RESPONDENT BANK DATED 19.10.2020.

EXHIBIT P3 A COPY OF THE ORDER MOV 09 AS VC/VII/78/2020-21 DATED 05.02.2021 ISSUED BY THE FIRST RESPONDENT.

RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp