Kerala High Court
M/S Up And Up Elevators vs State Of Kerala on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
WP(C).No.1441 OF 2021(E)
PETITIONER:
M/S UP AND UP ELEVATORS
TP23/840C, VARANAD, CHERTHALA, ALAPPUZHA DISTRICT,
KERALA, PIN-688539, REPRESENTED BY ITS MANAGING
PARTNER, KUNCHERIYA LONAPPAN.
BY ADV. SRI.BOBBY JOHN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES
DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN-
695001.
2 THE COMMISSIONER OF STATE GOODS AND SERVICE TAX
DEPARTMENT,
KERALA, TAX TOWER, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM, PIN-695002.
3 THE ASSISTANT STATE TAX OFFICER,
SQUAD NO.VIII, SGST DEPARTMENT, ERNAKULAM, COMMERCIAL
TAX COMPLEX, THEVARA, PIN-682015.
4 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE
DEPARTMENT (REVENUE), CENTRAL SECRETARIAT, NEW DELHI,
PIN-110001.
GP-SMT.THUSHARA JAMES
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.1441 OF 2021(E)
2
JUDGMENT
Dated this the 19th day of January 2021
Heard both sides.
2. The learned counsel for the petitioner argued that the
petitioner is a partnership firm doing business in the name and style of
UP & UP elevators at Cherthala in Alapuzha. He argued that on
11.01.2021, the petitioner purchased 4 numbers of Control Panels
from M/s. Propower Systems Pvt. Ltd., Bangalore after remitting the
requisite IGST also. Those goods were then transported from
Bangalore to Cochin through M/s. Kallada Logistics. In submission of
the learned counsel for the petitioner, goods were accompanied by
proper e-way bill. In transit, goods were shifted from one vehicle to
another vehicle for further transportation from Ernakuam to Cherthala.
However, on 15.01.2020, the 3rd respondent intercepted the vehicle
and verified the documents. The learned counsel for petitioner
accepted the fact that e-way bill which was with the goods sought to
be transported had expired on 14.01.2020, but argued that in view of
proviso clause to Rule 138 of the Central Goods and Services Rules,
2017, there is no necessity for having e-way bill, as the goods were to
be transported for a distances up to 50 kms only, within the State. As
such, there was no necessity to update the e-way bill. It is further
WP(C).No.1441 OF 2021(E)
argued that omission to extend the e-way bill is only a minor offence,
as the goods were covered by proper tax invoice and as such, action
of detention of goods is totally unjustified.
3. The learned Government Pleader argued that the petition as
framed and filed is not maintainable, as Form GST MOV-02 has
already been issued and relied on judgment of this court in
WP(C) No.17379/2020 decided on 12.01.2021. The learned
Government Pleader further relied on Rule 138(8) of GST Rules, 2017
to demonstrate that goods must be accompanied with e-way bill.
4. I have considered the submissions so advanced and
perused the materials placed before me.
5. Undisputedly, goods which were sought to be transported
from Bangalore to Cherthala came to be intercepted by the GST
authorities on 15.01.2021 and at that time, the authorities found that
e-way bill had expired on 14.01.2020. Therefore, goods were detained
and detention order came to be issued. Perusal of the order at Ext.P7
detaining the goods makes it clear that the goods were detained while
in transit because, validity of the e-way bill had expired and it was not
re-validated within the prescribed time. As a consequence, notice
under Section 129(3) of the GST Act came to be issued with a
direction to the petitioner authority to appear before the respondent
WP(C).No.1441 OF 2021(E)
authority on 24.01.2021 for showing cause as to why necessary action
as contemplated under Section 129 of the GST Act should not be
taken.
6. Thus, the matter is at present resting at the show cause
notice. Considering the fact that goods were being transported from
one State, ie, Karnataka to another State ie, Kerala, Rule 138(5) relied
by the petitioner has no application to the fact situation in the instant
case. Rule 138(8) of the said Rules makes copy of the e-way bill
mandatory during the course of conveyance of goods. The scheme 129
of the GST Act 2017 makes it clear that the petitioner is having
opportunity of hearing before the authority under the GST Act in the
wake of receipt of notice under Section 129(3) by him.
The petition as such is devoid of merit and the same is
accordingly rejected.
Sd/-
A.M.BADAR
Nsd JUDGE
//true copy//
PA to Judge
WP(C).No.1441 OF 2021(E)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE,
DATED 21.11.2018, ISSUED TO THE PETITIONER
IN FORM GST REG-06.
EXHIBIT P2 TRUE COPY OF THE GST INVOICE NO.802, DATED
11.01.2021, ISSUED BY M/S PROPOWER SYSTEMS
PVT. LTD, BANGALORE-76 TO THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE E-WAY BILL
NO.161289451425, DATED 11.01.2021,
GENERATED WITH RESPECT TO THE AFORESAID
GOODS.
EXHIBIT P4 TRUE COPY OF THE ORDER OF PHYSICAL
VERIFICATION OF THE GOODS, DATED
15.01.2021,ISSUED BY THE THIRD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE STATEMENT OF THE
DRIVER/PERSON IN CHARGE OF THE GOODS AND
CONVEYANCE, DATED 15.01.2021.
EXHIBIT P6 TRUE COPY OF THE PHYSICAL VERIFICATION
REPORT, DATED 15.01.2021, ISSUED BY THE
THIRD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE DETENTION ORDER UNDER
SECTION 129(1) OF THE CGST ACT/SGST ACT,
DATED 15.01.2021, ISSUED BY THE THIRD
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE NOTICE UNDER SECTION
129(3) OF THE CGST ACT/SGST ACT, DATED
15.01.2021, ISSUED BY THE THIRD RESPONDENT.
