Kerala High Court
M/S. Henry And Farad Pvt. Ltd vs Union Of India on 31 August, 2022
WP(C) No.28240/2022 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
Wednesday, the 31st day of August 2022 / 9th Bhadra, 1944
WP(C) NO. 28240 OF 2022
PETITIONERS:
1. M/S. HENRY AND FARAD PVT. LTD 35/333A, FIRST FLOOR, VILANGADAN
ESTATE, MAMANGALAM, POTTAKUZHI, PALARIVATTOM, KOCHI, REPRESENTED BY
ITS MANAGING DIRECTOR MR. PULIKKOTTIL HENRY JACOB, PIN - 682025
2. MR. PULIKKOTTIL HENRY JACOB AGED 58 YEARS MANAGING DIRECTOR HENRY
AND FARAD PVT. LTD., 35/333A, FIRST FLOOR, VILANGADAN ESTATE,
MAMANGALAM, POTTAKUZHI, PALARIVATTOM, KOCHI., PIN - 682025
RESPONDENTS:
1. UNION OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH
BLOCK, NEW DELHI., PIN - 110001
2. CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS DEPARTMENT OF REVENUE,
MINISTRY OF FINANCE, NORTH BIOCK, NEW DELHI . , PIN - 110001
3. THE PRINCIPAL COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE CENTRAL
REVENUE BUILDING, I.S. PRESS ROAD, KOCHI., PIN - 682018
4. THE ADDITIONAL DIRECTOR DIRECTORATE GENERAL OF GST INTELLIGENCE,
KOCHI ZONAL UNIT, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, KALOOR P.O.,
COCHIN , PIN - 682017
5. THE ASSISTANT COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE ALUVA
DIVISION,GST BHAVAN, KATHRIKADAVU, COCHIN , PIN - 682017
6. THE SUPERINTENDENT OF CENTRAL TAX & CENTRAL EXCISE, ALUVA RANGE,
ALUVA, PIN - 683108
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay operation and implementation of all further proceedings
pursuant to Exhibit PI Show Cause Notice No.24/2022-23 GST dated
03.06.2022 issued by the 4th Respondent, pending hearing and final
disposal of the Writ Petition.
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S.ABRAHAM JOSEPH MARKOS, V.ABRAHAM MARKOS, ISAAC THOMAS,
P.G.CHANDAPILLAI ABRAHAM, ALEXANDER JOSEPH MARKOS & SHARAD JOSEPH
KODANTHARAAD, Advocates for the petitioners, the court passed the
following:
WP(C) No.28240/2022 2/5
GOPINATH P., J
W.P.(C.). No.28240 of 2022
======================================
DATED THIS THE 31st DAY OF AUGUST 2022.
ORDER
The writ petition is filed, challenging Ext.P1 show cause
notice.
2. Heard the learned Senior counsel appearing for the
petitioner and the learned Standing counsel appearing for the
respondent Department.
3. Learned Senior counsel appearing for the petitioner
pointed out that in respect of one of the issues referred to in the
show cause notice (in relation to delayed payment of tax on works
contract) the petitioner is not contesting and the petitioner is
willing to pay the amount mentioned in the show cause notice.
He submits that the said amount will be approximately
Rs.11,00,000/- (Rupees Eleven lakhs only).
4. In respect of the two other issues raised in the show
cause notice, it is the submission of the learned Senior counsel
appearing for the petitioner that, one proposed demand arises
out of an interpretation placed by the officer relates regarding
zero rated supply, where the officer appears to have relied on the
WP(C) No.28240/2022 3/5
term 'for authorised operations', which was inserted by the Finance
Act, 2021 and has yet to be notified. It is submitted that though the
officer refers to the fact that the insertion of the term 'for
authorised operations' is yet to be notified, a demand is proposed
on the basis that the supplies made by the petitioner to the SEZ is
not 'for authorised operations'.
5. It is also submitted by the learned Senior Counsel that
the other point raised in Ext.P1 show cause notice that the
petitioner is ineligible for input tax credit, if the same is not claimed
by the filing returns in time. It is submitted that this issue squarely
covered in favour of the petitioner by the judgment of the
Karnataka High Court in Kirloskar Electric C.Ltd. V. State of
Karnataka [2018 (16) G.S.T.L. 564 (Kar) . It is submitted that
once the right to claim input tax credit is accrued, it cannot be
taken away, provided the input tax is claimed within the time
provided in the Statute.
6. Learned Standing counsel appearing for the respondent
Department seeks time to get instructions.
7. Having regard to the submission made as above, this writ
petition is admitted. There will be an interim order as prayed for,
on condition that the petitioner remits the undisputed amount along
with interest within a period of two weeks from today.
WP(C) No.28240/2022 4/5
Post on 22.09.2022. In the meanwhile, it will always be open
to the petitioner to file a reply to Ext.P1 show cause notice.
sd/-
GOPINATH P., JUDGE
ajt
WP(C) No.28240/2022 5/5
APPENDIX OF WP(C) 28240/2022
Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE NO.24/2022-23 GST
DATED 03.06.2022 ISSUED BY THE 4TH RESPONDENT.
