A.S.A Stores vs Asst. State Tax Officer
2021 Latest Caselaw 154 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                       WP(C).No.167 OF 2021(U)


PETITIONER:

               A.S.A STORES
               HILL PRODUCE MERCHANT,
               KUMILY P.O. 685 509,
               REPRESENTED BY ITS PROPRIETOR -
               SHAJITHA HUSSEIN.

               BY ADV. SRI.P.DEEPAK


RESPONDENTS:

      1        ASST. STATE TAX OFFICER
               STATE GOODS AND SERVICES TAX DEPARTMENT,
               SQUAD NO. 1, KATTAPPANA, IDUKKI 685 508.

      2        SPICE MORE TRADING COMPANY,
               KPXIV -11, VATTATHARA BUILDINGS,
               MUNNAR ROAD, KUMILY , KERALA 685 509.


               SMT. THUSHARA JAMES - GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 167/21
                                           2



                                  JUDGMENT

The petitioner is stated to be a

proprietary concern engaged in the supply of

hill produce including cardamom; and that it

has been an assessee to General Sales Tax, on

the rolls of the 1st respondent.

2. The learned counsel for the petitioner

- Sri.P.Deepak, submits that the 2nd respondent

is the holder of a cardamom E-Auctioneer

License, namely Ext.P1, issued by the License

Board as per the Cardamom (Licensing and

Marketing) Rules, 1987 and that on 01.01.2021;

and that a consignment comprising 13 bags of

cardamom, weighing 658 kgs having an estimated

value of Rs.12.5 lakhs, was conveyed to the

petitioner by the said respondent for the

purpose of auction sale on the strength of a

delivery challan, supported by an E-Way bill

generated by them, as is mandated under the

provisions of Rule 138 of the CGST Rules, WPC 167/21

2017.

3. Sri.Deepak alleges that even though

the consignment was thus being transported

validly, it was intercepted by the 1st

respondent and Ext.P7 notice issued to them,

for the reason that the supplier has not

produced documents matching with its original

destination. He asserts that the allegations

in Ext.P7 are wholly baseless, since Ext.P9

circular postulates that it is only when the

error in the address/pin code of the consigner

or consignee mentioned has the effect of

increasing the validity period of the E-Way

bill,an proceedings be initiated. He thus

prayed that Exts.P7 and P8 be set aside and

the respondents be directed to release the

consignment, along with the vehicle, to his

client at the earliest.

4. In response, Smt.Thushara James -

learned Government Pleader, appearing for the WPC 167/21

respondents, submitted that Ext.P7 notice and

P8 proceedings have been issued under a

bonafide suspicion that the petitioner is

attempting to use the same E-Way bill for

different consignments, involving multiple

transactions, thus leading to a legitimate

inference of evasion of tax. She submitted

that if the petitioner is willing, the

consignment - being a perishable one, along

with the vehicle, can be released to them, if

they offer a bank guarantee for the amount

mentioned in Ext.P7, so that the adjudication

proceedings thereon, leading to Form MOV-09

under the CGST Rules, can be issued within two

weeks from today.

5. On hearing the learned Government

Pleader as afore, Sri.Deepak submitted that

his client is willing to accede to her

suggestion and prayed that the respondents be

directed to complete the adjudication without WPC 167/21

any further delay.

In the afore circumstances, I order this

writ petition and direct the petitioner to

furnish a bank guarantee, drawn on a

nationalised Bank, to secure the sum mentioned

in Ext.P7 notice; and if this is done, the

respondents shall release the consignment,

along with the vehicle to them without any

avoidable delay.

Needless to say, the respondents shall

complete the adjudication based on Exts.P7 and

P8 - leading to the proceedings under Form

MOV-09, after affording an opportunity of

being heard to the petitioner - either

physically or through video-conferencing - as

expeditiously as is possible, but not later

than two weeks from the date of receipt of a

copy of this judgment and will communicate the

resultant order to them.

Since the article in question is a WPC 167/21

perishable one, I direct the learned

Government Pleader to communicate the contents

of this judgment to the respondents, so that

the petitioner, if they are able to furnish

the bank guarantee today itself, can obtain

release of the vehicle without any delay.

Sd/-

                                  DEVAN RAMACHANDRAN
      RR                                   JUDGE
 WPC 167/21




                           APPENDIX
      PETITIONER'S/S EXHIBITS:

      EXHIBIT P1        A TRUE COPY OF THE FORM BI LICENCE

ISSUED TO THE SECOND RESPONDENT DTD. 29.06.2018.

EXHIBIT P2 A TRUE COPY OF THE GST DELIVERY CHALLAN DATED 01/01/21.

EXHIBIT P3 A TRUE COPY OF THE E-WAY BILL DATED 01/01/2021.

EXHIBIT P4 A TRUE COPY OF THE FORM GST -MOV-02 DATED 01/01/2021.

EXHIBIT P5 A TRUE COPY OF THE PHYSICAL VERIFICATION REPROT IN FORM GST

-MOV-04 DATED 01.01.2021.

EXHIBIT P6 A TRUE COPY OF THE ORDER OF DETENTION IN FORM GST-MOV-064 DTD. 01.01.2021.

EXHIBIT P7 A TRUE COPY OF THE NOTICE UNDER SECTION 129 (3) IN FORM GST-OV-07 DATED, 01.01.2021.

EXHIBIT P7 (A) A TRUE COPY OF THE NOTICE UNDER SECTION 129(3) IN FORM GST -MOV-07 WITH THE INSERTION) DTD. 01.01.2021.

EXHIBIT P8 A TRUE COPY OF THE PROCEEDINGS DATED 01/01/2021 OF THE FIRST RESPONDENT (STO/SQDI/101/2020-21)

EXHIBIT P9 A TRUE COPY OF CIRCULAR NO.

64/38/2018-GST DATED 14.09.2018.