Kavery Traders vs The Asst. State Tax Officer
2022 Latest Caselaw 1354 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
        TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                          WP(C) NO. 3194 OF 2022
PETITIONER/S:

            KAVERY TRADERS
            PATHARIKODE, ELANKUR, MANJERI,
            MALAPPURAM DISTRICT, PIN-676121,
            REPRESENTED BY ITS MANAGING PARTNER,
            P.SAJITH KUMAR.

            BY ADVS.
            HARISANKAR V. MENON
            MEERA V.MENON
            R.SREEJITH
            K.KRISHNA



RESPONDENT/S:

    1       THE ASST. STATE TAX OFFICER
            MOBILE SQUAD NO.2, STATE GST DEPARTMENT,
            KOZHIKODE-673006.

    2       STATE TAX OFFICER,
            OFFICE OF THE DEPUTY COMMISSIONER (INTELLIGENCE),
            NIRMAL ARCADE BUILDING, ERANHIPALAM P.O.,
            KOZHIKODE-673006.

    3       STATE OF KERALA
            REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
            GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.


OTHER PRESENT:

            SMT.M.M.JASMIN-GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 3194 OF 2022
                                    2



               BECHU KURIAN THOMAS, J.
           ========================
                 W.P.(C) No. 3194 of 2022
           ========================
          Dated this the 1st day of February, 2022

                            JUDGMENT

Petitioner is a dealer in arecanut. Petitioner had

transported certain quantities of dry arecanuts, purchased from

unregistered persons, allegedly supported by Ext.P1 to P4 e-

way bills. While the goods were being transported it was

intercepted on 10.01.2022 at 7.50 p.m., and after verification,

the 1st respondent initiated proceedings under Section 129 of

the CGST/SGST Acts and detained the goods alleging 'excess

quantity' as evident from Ext.P7.

2. Subsequently, petitioner filed an objection as

Ext.P10, contending that, the quantity of goods that were being

transported by the petitioner tallied with the e-way bills and

that if a proper ascertainment of the weight of the load is

carried out, it would reveal that there was no incongruity in the

quantity of goods transported and the e-way bills. WP(C) NO. 3194 OF 2022

3. However, by order dated 25.01.2022 the State Tax

Officer rejected the objections and issued an order under

Section 129(3) in Form GST MOV 09. In arriving at a conclusion

that, petitioner is liable to pay the amount stipulated therein,

the State Tax Officer has arrived at a conclusion that, there is

excess quantity of goods in the vehicle than the quantity

declared in the 4 e-way bills.

4. The learned counsel for the petitioner vehemently

argued that, if an actual measurement of the goods are carried

out, it could be easily realized that the weight of the goods

transported tallied with the 4 e-way bills and also that there

was no incongruity with the e-way bills.

5. I have heard Sri. Harishankar V. Menon, the learned

counsel for the petitioner and Smt. M.M Jasmine, the learned

Government Pleader.

6. On a perusal of the impugned order Ext.P11, it can

be noticed that the 2nd respondent has arrived at a conclusion

that the quantity of the load that was being carried did not tally WP(C) NO. 3194 OF 2022

with the quantity mentioned in the e-way bills. Though

petitioner disputes the said conclusion, correctness or

otherwise of the said conclusion falls within the realm of

disputed facts. It is trite law that this Court cannot, in exercise

of its jurisdiction under Article 226 of the Constitution of India

enter into issues that falls within the realm of disputed facts.

Further, petitioner has an alternative and efficacious remedy

under Section 107 of the CGST/SGST Act 2017 and hence it will

not be subjected to any prejudice also.

7. Accordingly, without entering into any findings on the

contentions raised by the learned counsel for the petitioner, I

dismiss this writ petition. However, liberty of the petitioner to

have recourse to the statutory remedies available shall not be

prejudiced by this judgment.

This writ petition is dismissed.

Sd/-

BECHU KURIAN THOMAS LU JUDGE WP(C) NO. 3194 OF 2022

APPENDIX OF WP(C) 3194/2022

PETITIONER EXHIBITS

EXHIBIT P1 COPY OF E-WAY BILL NO.521329443018 GENERATED BY THE DEALER TO THE PETITIONER DATED 10.1.2021.

EXHIBIT P2 COPY OF E-WAY BILL NO.541329441399 GENERATED BY THE DEALER TO THE PETITIONER DATED 10.1.2021.

EXHIBIT P3 COPY OF E-WAY BILL NO.551329445295 GENERATED BY THE DEALER TO THE PETITIONER DATED 10.1.2021.

EXHIBIT P4 COPY OF E-WAY BILL NO.521329446653 GENERATED BY THE DEALER TO THE PETITIONER DATED 10.1.2021.

EXHIBIT P5 COPY OF INVOICE NO.27 OF M/S. MALABAR ENTERPRISES, PASUKKADAVU, KAVILUMPARA KOZHIKODE DATED 10.1.2022.

EXHIBIT P6 COPY OF E-WAY BILL GENERATED BY M/S.

MALABAR ENTERPRISES, PASUKKADAVU, KAVILUMPARA , KOZHIKODE DATED 10.1.2022.

EXHIBIT P7 COPY OF ORDER OF DETENTION IN FORM GST MOV 06 ISSUED BY THE 1ST RESPONDENT 10.1.2021.

EXHIBIT P8 COPY OF INVOICE UNDER SECTION 129 (3) IN FORM GST MOV 07 ISSUED BY THE 1ST RESPONDENT DATED 10.1.2022.

EXHIBIT P9 COPY OF E-WAY BILL NO.501329600055 GENERATED BY M/S.MALABAR ENTERPRISES DATED 10.1.2022.

WP(C) NO. 3194 OF 2022

EXHIBIT P10 COPY OF LETTER SUBMITTED BY THE PETITIONER DATED 19.01.2022.

EXHIBIT P11 COPY OF MOV 09 ORDER OF DEMAND OF TAX AND PENALTY ISSUED BY THE 2ND RESPONDENT 25.1.2022.

          //   True Copy //            PA To Judge