Kishore Transport Service ... vs State Of Kerala
2021 Latest Caselaw 14991 Ker

Citation : 2021 Latest Caselaw 14991 Ker
Judgement Date : 16 July, 2021

Kerala High Court

Kishore Transport Service ... vs State Of Kerala on 16 July, 2021

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE A.M.BADAR
   FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                     WP(C) NO. 14210 OF 2021
PETITIONER/S:

            KISHORE TRANSPORT SERVICE PVT.LTD
            PLOT NO. 22, BIDADI INDUSTRIAL AREA, ABBANAKUPP
            CROSS, BIDADI, BANGALORE, KAMATKA 562 109
            REPRESENTED BY ITS DIRECTOR MR. SOJAN JOSE, FLAT
            NO. M-403, S.NO 3876, NEAR CHINCHWAD RAILWAY
            STATION, UDYONAGAR, CHINCHWAD, PUNE -411033

            BY ADVS.
            MATHEW BOB KURIAN
            K.T.THOMAS
            N.SUNIL



RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES
            DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695
            001

    2       THE ASSISTANT STATE TAX OFFICER
            SQUAD NO. VI, STATE GST DEPARTMENT, PALAKKAD,
            KERALA 678 001


OTHER PRESENT:

            SPLGP TAX,SMT.THUSHARA JAMES




     THIS    WRIT   PETITION     (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON   16.07.2021,     THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 14210 OF 2021


                                      -2-


                             A.M.BADAR, J.
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                     WP(C) NO. 14210 OF 2021
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               Dated this the 16th day of July, 2021

                              JUDGMENT

Heard the learned counsel for the petitioner. He submits that during the journey, the vehicle met with breakdown and the E-way bill had expired. The petitioner could not renew the E-way bill because of intervening Saturday and Sunday, within the time limit prescribed by the statute. He, therefore, submits that the impugned notice Form GST Mov-02 is totally illegal because the goods were being transported with E-way bill, which unfortunately expired as the vehicle could not travel within the prescribed time because of break-down. The learned counsel for the petitioner submits that the impugned communication Ext.P11, which is a notice in Form GST Mov-02, regarding the inspection needs to be quashed and set aside.

2. The learned Government Pleader submits that WP(C) NO. 14210 OF 2021

the petition is not maintainable, because the Scheme of Section 129 of the Central Goods and Service Tax Act provides for the remedy and this court has already decided the issue in W.P.(C) No.17379 of 2020 in between M/s.Podaran Foods India Private Limited v. State of Kerala decided on 12.1.2021. I have considered the submission made above. For whatever reasons, the goods, at the time of inspection, were found to be without valid documents as required by the GST Act. The proper Officer, therefore, started proceedings under Section 129 of the GST Act, which are not even culminated in the final order. In the matter of M/s.Podaran Foods India Private Limited (supra), this court had already concluded the issue with the following observations:

"6. On a consideration of the rival contentions, I am of the view that under Section 129 of the Act, if a proper officer who is entrusted with the task of detaining goods, finds that they have been transported in contravention of the rules, WP(C) NO. 14210 OF 2021

he does not have the discretion to condone the procedural lapse or relax its rigour in particular cases. He must interpret the Rule strictly keeping in mind the statutory scheme that aims to curb tax evasion. In as much as the adjudication that is expected of him is a summary one, he can do no more than determine whether or not on a literal reading of the statutory provisions, together with the circulars issued from time to time, there has been a breach occasioned thereof. Any person aggrieved by the order of the proper officer must necessarily approach the appellate authority before which an appeal against the adjudication order under Section 129 (3) of the Act is maintainable. In the instant case too, the remedy of the petitioner is to approach the appellate authority under the Act against the finding of the proper officer.

7. The upshot of the above discussion is that I do not find any reason to interfere with the adjudication orders in Form GST MOV-9 impugned WP(C) NO. 14210 OF 2021

in the writ petition. The petitioner is relegated to his alternate remedy of preferring appeals against the said adjudication orders before the appellate authority under the Act. All contentions, legal and factual, are left open to be agitated by the petitioner before the appellate authority. To enable the petitioner to do so, I direct that the stay granted by this court, against invocation of the bank guarantee furnished by the petitioner, shall continue to remain in force for a period of two months from the date of receipt of a copy of this judgment."

Applying the same ratio, this Writ Petition deserves to be dismissed and accordingly, it is dismissed.

Needless to mention that the petitioner is free to participate in the proceedings under Section 129 of the GST Act.

sd A.M.BADAR, JUDGE.

dl/ WP(C) NO. 14210 OF 2021

APPENDIX OF WP(C) 14210/2021 PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER COMPANY DATED 24-10-2020

Exhibit P2 TRUE COPY OF THE INVOICE NO.

KA5100003432 DATED 22-06-2021 ISSUED BY TATA MOTORS LTD

Exhibit P3 TRUE COPY OF THE INVOICE NO.

KA5100003429 DATED 22-06-2021 ISSUED BY TATA MOTORS LTD

Exhibit P4 TRUE COPY OF THE INVOICE NO.

KA5100003428 DATED 22-06-2021 ISSUED BY TATA MOTORS LTD