A.S.Jewellers vs State Tax Officer
2021 Latest Caselaw 21853 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
   WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                       WP(C) NO. 21208 OF 2021
PETITIONER :

          A.S.JEWELLERS,
          17/20C, ELAMTHURUTHI, THRISSUR - 680306,
          REPRESENTED BY ITS MANAGING PARTNER,
          SRI ANTO K. D.

          BY ADV TOMSON T.EMMANUEL


RESPONDENTS:

    1     STATE TAX OFFICER,
          STATE GOODS & SERVICE TAX DEPARTMENT,
          SQUAD NO.IX, PALAKKAD - 678001.

    2     STATE OF KERALA,
          STATE GOODS & SERVICE TAX DEPARTMENT,
          SECRETARIAT, THIRUVANANTHAPURAM - 695 001,
          REPRESENTED BY SECRETARY TO GOVERNMENT.

    3     GOVERNMENT OF INDIA,
          DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE AND
          CUSTOMS, NEW DELHI - 110001, REPRESENTED BY ITS
          SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE.

    4     SOUTH INDIAN BANK,
          MISSION QUARTERS BRANCH, THRISSUR - 680 005,
          REPRESENTED BY ITS BRANCH MANAGER.

          BY ADVS.
          GOVERNMENT PLEADER
          SUNIL SHANKER
          VIDYA GANGADHARAN

          BY ASG SRI.P.VIJAYAKUMAR

          BY SENIOR GOVT.PLEADER DR.THUSHARA JAMES


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 21208 OF 2021
                                  2


                 BECHU KURIAN THOMAS, J.
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                  W.P.(C) No.21208 of 2021
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           Dated this the 3rd day of November, 2021



                            JUDGMENT

Various reliefs are claimed by the petitioner. It includes a

direction to serve a copy of an Order issued under Section 129(3) of

the Central Goods and Services Tax Act (for short, 'the Act') and not

to invoke the bank guarantee furnished by the petitioner.

2. Petitioner claims to be engaged in the manufacture of

gold ornaments as job work for others. On 29.08.2019, while a staff

of the petitioner was travelling on a train, for supplying the

ornaments to its principals after the job work, the Railway police

intercepted him at 5.45 a.m.and registered FIR No.69/2019 at

Palakkad Railway Police Station, suspecting commission of a crime.

Subsequently, the seized gold ornaments were produced before the

Judicial First Class Magistrate's Court, Palakkad. A petition was

submitted by the first respondent under Section 129 of the Act on

18.09.219, seeking detention of the gold while the petition sought

interim custody of the gold. By order dated 15.10.2019, the learned

Magistrate directed the seized gold to be returned to the petitioner WP(C) NO. 21208 OF 2021

on furnishing a bank guarantee as security as contemplated under

Section 129 of the Act. On the basis of a bank guarantee furnished

by the petitioner initially on 14.11.2019 (later corrected and

resubmitted a fresh guarantee on 06.02.2020) the goods were

released to the petitioner. Though in the meantime, an adjudication

was held on 24.01.2020, pursuant to notice, petitioner alleges that

no orders thereon were communicated to the petitioner.

3. It is alleged that in the meantime, petitioner was

served with Ext.P8 notice dated 22.09.2021 invoking the bank

guarantee submitted by the petitioner. On getting intimation of the

invocation of bank guarantee petitioner noticed the reference to an

order dated 25.01.2020, indicating it to be the final order under

Section 129 of the Act. Petitioner claims that such an order had

never been served upon the petitioner, to his knowledge. In the

above circumstances, petitioner alleges that since the order has not

been served upon the petitioner till date, its right to prefer an appeal

under Section 107 of the Act could not be exercised and that before

serving the copy of the order under Section 129(3), bank guarantee

cannot be invoked. He therefore prays that its his right to pursue the

statutory remedy of appeal against final order be made available to

him, by issuing atleast a certified copy of the order and also restrain WP(C) NO. 21208 OF 2021

the invocation of the bank guarantee, till the appeal is considered.

4. The first respondent filed a counter affidavit specifying

that the bank guarantee was initially submitted on 14.11.2015 and

was corrected and resubmitted on 06.02.2020 and that there was no

restriction on the first respondent passing an order under Section

129(3) of the Act, since the initial bank guarantee was submitted in

November 2015 itself. Furthermore, it was pointed out that the

order under Section 129(3) of the Act was issued on 25.01.2020 and

a copy was sent by registered post to the petitioner on 28.01.2020

and was, in fact, received by the petitioner on 03.02.2020. It is

further stated that the dispatch register maintained by the first

respondent shows that the order was dispatched to the petitioner

and the acknowledgement card evidenced receipt of the order by the

petitioner. The copy of dispatch register and acknowledgement card

were produced as Ext.R1(b) and Ext.R1(c). It was further pleaded in

the statement as follows :-

"The respondent herein wishes to submit the facts of this

matter in a concise manner. A person carrying 2767 grams of gold was

intercepted by the Railway Police while he was travelling from Chennai to

Thrissur on 29.08.2019 at 5.45 a.m. Upon interception, the person was

asked to produce documents accompanying the gold. The person could not

produce any documents and also could not give any explanation or detail WP(C) NO. 21208 OF 2021

as to where he was taking the gold and for what purpose. Suspecting

smuggling, and since he had very huge quantity of gold with him, the

Railway Police proceeded to arrest the person and lodged an FIR with

JFCM-III, Palakkad on the very same day. A crime was registered as

Crime No.69/2019. Thereafter, the petitioner, M/s.A.S.Jewellers appeared

before the JFCM and claimed the ownership of the gold carried by the

person. The petitioner claimed the ownership of 560 grams of gold

ornaments as well as 1807 grams of gold bullion. The petitioner filed claim

petitions before the JFCM Court. By this time, the State GST Department

was intimated of this matter and the State Tax Officer, the respondent

herein, filed an affidavit and petition before the JFCM Court claiming the

tax component with regard to the transaction The mater was heard by the

Hon'ble Court and interim custody of the gold was ordered to the petitioner

on complying with the conditions with regard to submission of bank

guarantee for the prescribed amount. Accordingly, the parties submitted a

bank guarantee for the prescribed amount on 14.11.2019. However, on

noting certain mistakes in the bank guarantee furnished, the respondent

herein informed the petitioner that the same ought to be corrected, in

satisfaction of the conditions of interim custody granted by the JFCM Court.

It was also pleaded that " the respondent herein had issued

and the petitioner had received the order in question. There is no

irregularity in the proceedings undertaken by the respondent as well as the

manner of communication of the final order of the adjudication. The WP(C) NO. 21208 OF 2021

petitioner has wrongly averred that the order was not received by him with

malafides and nefarious intentions. The respondent is to understand from

the averments, that the petitioner is relying upon the date of submission of

corrected bank guarantee i.e.on 29.01.2020, to state that the order was

not issued on 25.01.2020. It is submitted that the bank guarantee was

submitted by the petitioner as early as on 14.11.2019 and all that

happened on 29.01.2020 is submission of the corrected bank guarantee as

communicated by the respondent herein to the petitioner with regard to

submitting of the corrected bank guarantee. Further, the date of

submission of the corrected bank guarantee and issuance of the order

under Section 129 are unconnected matters. The bank guarantee was

submitted pursuant to the order of the JFCM Court and the order of

adjudication proceeded with by the respondent was under Section 129 of

the GST Act, with regard to the goods that were carried by the person

without the requisite documents prescribed under the Act". Respondents

thus sought for the dismissal of the writ petition.

5. I have heard the arguments of Adv.Tomson

T.Emmanuel, the learned counsel for the petitioner as well as

Dr.Thushara James, the learned Senior Government Pleader for the

respondent.

6. The first and foremost issue to be considered is

whether petitioner was in receipt of the order issued by the first WP(C) NO. 21208 OF 2021

respondent under Section 129(3) of the Act. Service of notice under

the Act is contemplated in Section 169 which reads as follows :-

169. Service of notice in certain circumstances (1). Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:-

(a). by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or

(b). by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or

(b). by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or

(c). by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or

(d). by making it available on the common portal; or

(e). by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or WP(C) NO. 21208 OF 2021

personally worked for gain; or

(f). if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice.

(2). Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1).

(3). When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved.

7. Section 169 (1)(b) provides for service by registered

post with acknowledgement due, while sub-clause (2) creates a

deeming fiction as per which every decision or order shall be deemed

to have been served on the date on which it is tendered as provided

in sub-section (1). When a statute enacts that something shall be

deemed to have been done, the Court has a duty to give effect to

that fiction.

8. As per the statutory prescription and going by the

averments in the counter affidavit as well as the documents

produced, it is evident that petitioner can be deemed to have been WP(C) NO. 21208 OF 2021

tendered with the order under Section 129(3) on 03.02.2020. The

fiction that is created does not leave any room for doubt and since

the tendering of notice is by registered post with acknowledgement

due, there is no scope for even assuming that the order was not

served on the petitioner. In this context, this Court notices the

pleading of the petitioner that he had received the notice for hearing

scheduled on 24.01.2020. The copy of dispatch register showing that

the order was dispatched on 28.01.2020 and the copy of

acknowledgement card produced as Ext.R1(c), fortifies the above

conclusion. Hence I find that the order under Section 129(3) of the

Act was served on the petitioner on 03.02.2020.

9. However, having regard to the contention that

petitioner had not received the order or that he may have misplaced

the order due to which petitioner ought to be given a certified copy

to enable him to pursue appropriate statutory remedy is a contention

which merits consideration.

Petitioner contends that he is entitled to claim the benefit

of the condonation of period of limitation on account of the order of

the Supreme Court in "Re: Cognizance for Extension of

Limitation v." reported in [(2021) 5 SCC 452)] and the subsequent

order dated 23.09.2021 as per which, the period from 15.03.2021 till WP(C) NO. 21208 OF 2021

02.10.2021 have been directed to be condoned by the Supreme

Court in all applications under all statutes. Since the petitioner's

right to pursue an appeal cannot be curtailed solely on account of

non-receipt of an order or loss of an order, if law otherwise permits

him to pursue the appeal, then certainly it is incumbent upon the first

respondent to issue a certified copy to the petitioner.

Accordingly I direct the first respondent to issue a certified

copy of the order No.IX/CR-69/19/6207/19 dated 25.01.2020 to the

petitioner in accordance with law forthwith. Needless to say, on

receipt of certified copy, petitioner will be entitled to pursue its

statutory remedies in accordance with law. It is also clarified that

since this Court has exercised the discretion to direct certified copy to

be served to the petitioner, invocation of Ext.P6 bank guarantee

through Ext.P8 letter shall be kept in abeyance and the bank

guarantee be kept alive for a period of 60 days from today to enable

the petitioner to pursue the statutory remedies, if available.

The writ petition is disposed of as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM WP(C) NO. 21208 OF 2021

APPENDIX OF WP(C) 21208/2021

PETITIONER'S EXHIBITS :

Exhibit P1 TRUE COPY OF REGISTRATION CERTIFICATE DATED 16.07.2018 ISSUED TO PETITIONER UNDER THE GST ACT, 2017.

Exhibit P2 TRUE COPY OF DELIVERY CHALLAN NO.03 DATED 22.08.2019, GOLD ISSUE VOUCHER NO.124 DATED 23.08.2019 AND ISSUED VOUCHER NO.471 DATED 28.08.2019 ACCOMPANIED WITH CONSIGNMENT FOR JOB WORKS.

Exhibit P3 TRUE COPY OF FIRST INFORMATION REPORT NO.0069 DATED 29.08.2019 RAISED BY SUB-

INSPECTOR, RAILWAY POLICE STATION, PALAKKAD.

Exhibit P3(a) TRUE COPY OF SEIZER MAHASSAR DATED 29.08.2019 ISSUED BY SUB-INSPECTION, RAILWAY POLICE STATION, PALAKKAD.

Exhibit P4 TRUE COPY OF AFFIDAVIT AND PETITIONER DATED 18.09.2019 SUBMITTED BEFORE JUDICIAL FIRST CLASS, MAGISTRATE COURT, PALAKKAD BY 1ST RESPONDENT.

Exhibit P5 TRUE COPY OF COMMON ORDER DATED 15.10.2019 IN CMP 6206 AND 6207 OF 2019 PASSED BY JUDICIAL FIRST CLASS, MAGISTRATE - III COURT, PALAKKAD.

Exhibit P6          TRUE COPY OF BANK GUARANTEE DATED
                    14.11.2019 FOR RS.5,39,136/- ISSUED BY 4TH
                    RESPONDENT BANK, SUBMITTED BEFORE 1ST
                    RESPONDENT.

Exhibit P7          TRUE COPY OF NOTICE DATED 17.01.2020 IN
                    FIXING PERSONAL HEARING TO 24.01.2020
                    ISSUED BY 1ST RESPONDENT.
 WP(C) NO. 21208 OF 2021




Exhibit P8          TRUE COPY OF LETTER DATED 22.09.2021 ISSUED
                    TO 4TH RESPONDENT BANK, BY 1ST RESPONDENT
                    IN DEMANDING ENCASHMENT OF BANK EXT. P6
                    BANK GUARANTEE.