Kerala High Court
Powernet India Pvt.Ltd vs Union Of India on 19 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
WP(C) NO. 24173 OF 2021
PETITIONER:
POWERNET INDIA PVT.LTD.
KARUKAPPILLIL, OLIYAPURAM P.O.,
KOTHATTUKULAM, ERNAKULAM-686662,
REPRESENTED BY ITS DIRECTOR.
BY ADV LATHEESH SEBASTIAN
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
ROOM NO.46, NORTH BLOCK,
NEW DELHI-110001.
2 THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS,
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,
NORTH BLOCK, NEW DELHI-110001.
3 THE COMMISSIONER,
CENTRAL EXCISE AND CUSTOMS, C.R.BUILDING,
I.S.PRESS ROAD, COCHIN-682018,
ERNAKULAM DISTRICT.
4 THE JOINT COMMISSIONER (APPEALS),
CENTRAL EXCISE AND CUSTOMS,
C.R.BUILDING, I.S.PRESS ROAD,
COCHIN-682018, ERNAKULAM DISTRICT.
5 THE ASSISTANT COMMISSIONER,
CENTRAL EXCISE AND CUSTOMS,
PERUMBAVOOR DIVISION, PERUMBAVOOR,
ERNAKULAM DISTRICT-683542.
WP(C) NO. 24173 OF 2021
2
6 THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL
EXCISE,
KOLENCHERY RANGE, M.M.JUNCTION,
KOLENCHERY, ERNAKULAM DISTRICT-682311.
BY SRI.SREELAL WARRIER,SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 19.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 24173 OF 2021
3
BECHU KURIAN THOMAS, J
-------------------------------
W.P.(C.) NO. 24173 OF 2021
--------------------------------
Dated this the 19th day of November, 2021
JUDGMENT
Petitioner challenges the order of the appellate
authority under the goods and service tax Act refusing to
revoke the cancellation of registration on the ground of the
application for cancellation being time-barred.
2. Petitioner's registration under the Central Goods
and Service Tax Act 2017 (for short the Act) was cancelled
on 13-05-2019, for non-filing of returns for a continuous
period of six months. Though petitioner had filed an
application for revocation of cancellation, that application
was rejected since it was filed beyond the period. While the
registration remained cancelled, a notification under section
128 of the Act was issued on 01-06-2021, granting an
WP(C) NO. 24173 OF 2021
Amnesty Scheme.
3. In an attempt to obtain benefit of the amnesty
scheme, Petitioner had to be a registered tax payer.
Therefore, an application was filed seeking to revoke the
cancellation of registration. Thereafter, a writ petition was
filed as WP(c) No. 17123 of 2021 which was dismissed by
judgment dated 25-08-2021. The writ appeal filed by the
petitioner was disposed of by judgment dated 27-08-2021
in which, taking note of the proviso to the notification for
amnesty scheme, petitioner was given the liberty to prefer
an appeal before the Appellate Authority against the order
cancelling the registration and also to file an application to
condone the delay. The Appellate Authority was directed to
consider the same in accordance with law.
4. Pursuant to the judgment in the writ appeal,
petitioner filed an appeal and by judgment dated 06-10-
2021, the Appellate Authority rejected the petitioner's
WP(C) NO. 24173 OF 2021
appeal on the ground that the time limit for filing an
application for revocation of cancellation of registration
expired on 12-08-2019 and that the said date does not fall
within the period stipulated by the Supreme Court
(obviously referring to the judgment In Re Cognizance for
the purpose of Limitation 2021 (5) KHC 508). This writ
petition is preferred challenging the order of the appellate
authority a copy of which is produced as Ext. P9.
5. I have heard Adv. Latheesh Sebastian, the learned
counsel for the petitioner, Adv. S. Manu the learned
Assistant Solicitor General of India and Adv. Sreelal N.
Warrier, the learned Standing Counsel appearing for
respondents 2 to 6.
6. The learned counsel for the petitioner invited my
attention to the observations of the judgment in writ appeal
and contended that the intention behind relegating the
petitioner to the Appellate Authority and to file appropriate
WP(C) NO. 24173 OF 2021
applications was only because the Court was convinced
about the applicability of the notification to the petitioner
and that the Appellate Authority erred in not granting the
benefit conferred upon the petitioner.
7. In order to appreciate the contentions raised by the
learned counsel for the petitioner, it is necessary to advert
to the observations of the Division Bench in Writ Appeal
No.1077 of 2021. The following observations are relevant:
" Prima facie, we are of the view that both from the circumstances of
the case and also the cogent reasons given by the learned Single
Judge, the writ appeal does not merit interference with the
jurisdiction exercised by the learned Single Judge. This observation
by us, ought not to be understood as shutting out the other options
available to the appellant in this behalf. The appellant, as noted
above, intends to get the cancellation of registration revoked and
also apply for settlement in terms of Ext. P7 notification. For the
said purpose, to meet the ends of justice and in the fitness of the
circumstances of this case, we observe as under:
a) The appellant is given liberty to avail the options open
under Ext. P7 notification. The Standing Counsel appearing
for respondent Nos 2 to 6 is instructed to immediately
intimate the respondent Nos 2 to 6 about the liberty granted
by this Court immediately.
b) Appellant is given the liberty to file appeal along with the
application to condone the delay against the order of the
cancellation of registration before the Appellate Authority.
The Appellate Authority does the needful in accordance with
law.
WP(C) NO. 24173 OF 2021
The writ appeals stands disposed of as indicated above. No order as
to costs."
8. The above observations of the Division Bench of
this Court, does not indicate, even remotely that the
condonation of delay was predetermined by the Court. This
Court had observed that, if options are available to the
appellant on the basis of the notification (produced as
Ext.P5 in this Writ Petition), then the petitioner will be
entitled to take the benefit of it. It is further noticed from
the direction in Clause (b) that the petitioner was given the
liberty to file an appeal along with the application to
condone the delay against the order of the cancellation of
the registration, before the Appellate Authority, and the
authority was directed to do the needful in accordance with
law. The requirement of filing an application for
condonation of delay and the observation that the needful
shall be done in accordance with law, are clear indications
WP(C) NO. 24173 OF 2021
that the appeal of the petitioner was directed to be
considered purely in accordance with law. The direction to
file an application for condonation of delay is a necessary
concomitant of the due process of law.
9. The Appellate Authority had noticed the dates
applicable in the case of the petitioner and held that the
Judgment of the Supreme Court to condone the period of
limitation was not applicable. The registration of the
Petitioners was cancelled on 13.05.2019 and the appeal
period expired on 12.08.2019. The condonable period had
also expired by 11.08.2019. The Supreme Court direction
on condoning the limitation period was available only for
the period from 15.03.2020 to 02.10.2021. Thus,
indubitably petitioner does not fall within the condonable
period and hence, the delay cannot be condoned.
10. Since the appeal filed by the petitioner, pursuant
to the aforesaid directions, was rejected on account of the
WP(C) NO. 24173 OF 2021
belated application, being beyond the power of
condonation, I am of the view that there is no apparent
perversity in the impugned order and it is in accord with
law.
This Writ Petition is therefore dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
avs
WP(C) NO. 24173 OF 2021
APPENDIX OF WP(C) 24173/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE REGISTRATION
CERTIFICATE DATED 16.7.2018.
Exhibit P2 TRUE COPY OF THE SHOW CAUSE NOTICE OF
THE 6TH RESPONDENT DATED 14.1.2019.
Exhibit P3 TRUE COPY OF THE ORDER OF THE 6TH
RESPONDENT DATED 14.1.2019.
Exhibit P4 TRUE COPY OF THE E-MAIL COMMUNICATION
DATED 28.3.2021.
Exhibit P5 TRUE COPY OF THE NOTIFICATION OF THE
RESPONDENTS 1 AND 2 DATED 1.6.2021.
Exhibit P6 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WP(C) NO.17123/2021
DATED 25.8.2021.
Exhibit P7 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WRIT APPEAL
NO.1077/2021 DATED 27.8.2021.
Exhibit P8 TRUE COPY OF THE APPEAL MEMORANDUM OF
THE PETITIONER DATED 27.8.2021.
Exhibit P9 TRUE COPY OF THE ORDER OF THE 4TH
RESPONDENT IN APPEAL NO.43/GST/CHN/ADC-
JC/2021 DATED 6.10.2021.
