Shine Plast vs Assistant State Tax Officer
2021 Latest Caselaw 221 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.11 OF 2021(B)


PETITIONER:

              SHINE PLAST
              NO.82, RISALDAR STREET, 2ND CROSS, SHESHADRIPURAM,
              BANGLORE-560 020 REPRESENTED BY ITS PROPRIETOR
              MOHAMMED ASHRAF T.M.

              BY ADVS.
              SRI.A.RAJASIMHAN
              SHRI.JOBIN ABRAHAM
              KUM.VYKHARI.K.U

RESPONDENT:

              ASSISTANT STATE TAX OFFICER
              STATE GST DEPARTMENT, KERALA, SURVEILANCE SQUAD,
              MUTHANGA, WAYANADU-673 592.


OTHER PRESENT:

              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:
 WP(C).No.11 OF 2021(B)

                                    2




                            JUDGMENT

The petitioner says that they are the manufactures of "Roto

Fabric Cloth Bags" for the consumption of the Kerala State Civil

Supplies Corporation, but that when they tried to transport it on

the strength of Ext.P1 - Tax Invoice and Ext.P2 - E-way bills, it

has been detained by the respondent, alleging that the product

is actually cotton bags and therefore, within the sweep of

Section 31 of the Central Goods and Services Tax Act, 2017

(hereinafter referred to as 'the Act' for short).

2. The petitioner, through their learned counsel,

Sri.A.Rajasimhan, vehemently asserts that the respondent has

detained the goods on a misconception, since the articles are

"Roto Fabric Cloth Bag" and not cotton bags; and thus prays

that the consignment be ordered to be released, after the

respondent is directed to take a sample of the bags in their

presence and acknowledgment.

3. Sri.Rajasimhan, added to the afore submissions by

saying that the respondent could not have detained the vehicle

under the provisions of Section 129 (1) of the Act, 2017, because

there has been no contravention from his client's side and WP(C).No.11 OF 2021(B)

consequently, that the detention is illegal and unlawful.

4. However, in response, Smt.Thushara James, learned

Government Pleader, submitted that, as is evident from Ext.P7,

the Authorities have considered the nature of the articles and

has found that the petitioner is attempting to transport it on the

strength of Ext.P1 - Tax Invoice and Ext.P2 - E-way bills, which

show contrary to the claimed classification. She therefore,

prayed that this writ petition be dismissed and the petitioner be

directed to comply with the demand made against him through

the impugned orders and notices.

5. When I consider the afore submissions, it is

indubitable that, at this stage, it will not be proper or prudent

for this Court to enter into the merits of the controversy, since it

will involve assessment of factual aspects and issues which is

possible only through a a proper enquiry, following due

procedure as per law.

6. I am therefore, of the firm view that the petitioner

must be given the latitude of having his articles released on the

strength of sufficient security - which the petitioner accedes by

way of a bank guarantee - on the further condition that the

respondent completes the statutory adjudication within a time WP(C).No.11 OF 2021(B)

frame, after obtaining a sample of the bag in the presence and

acknowledgment of the petitioner.

In the afore circumstances, I order this writ petition and

direct the petitioner to furnish a bank guarantee, drawn on a

Nationalized Bank, for the amount covered by Ext.P7; and if this

is done within a period of one week from the date of receipt of a

copy of this judgment, the respondent shall release the articles

to the petitioner, after taking a sample of the bags in the

presence and acknowledgment of the petitioner.

Needless to say, the adjudication based on the impugned

orders and notices shall be completed by the competent

Authority, after affording necessary opportunity of being heard

to the petitioner - either physically or through

videoconferencing - culminating in an appropriate order

thereon, as expeditiously as is possible but not later than three

weeks from the date of receipt of a copy of this judgment.

This writ petition is thus ordered.

SD/-

                                           DEVAN RAMACHANDRAN

rp                                                   JUDGE
 WP(C).No.11 OF 2021(B)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TAX INVOICE DATED 24.12.2020.

EXHIBIT P2                 TRUE COPY OF THE E-WAY BILL DATED 28.12.2020.

EXHIBIT P3                 TRUE COPY OF THE FORM GST MOV-01 DATED 29.12.2020
                           ISSUED BY THE RESPONDENT.

EXHIBIT P4                 TRUE COPY OF THE FORM GST MOV-02 DATED 29.12.2020
                           ISSUED BY THE RESPONDENT.

EXHIBIT P5                 TRUE COPY OF THE FORM GST MOV-04 DATED 29.12.2020
                           ISSUED BY THE RESPONDENT.

EXHIBIT P6                 TRUE COPY OF THE FORM GST MOV-06 DATED 29.12.2020
                           ISSUED BY THE RESPONDENT.

EXHIBIT P7                 TRUE COPY OF THE FORM GST MOV-07 DATED 29.12.2020
                           ISSUED BY THE RESPONDENT.