Crystal Jewellers vs The State Of Kerala
2022 Latest Caselaw 944 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
        TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
                       WP(C) NO. 29608 OF 2021
PETITIONER:

            M/S.CRYSTAL JEWELLERS
            TC 38/1222, ABDEEN COMPLEX, VALAYAL CHETTY STREET P.O.,
            CHALAI, THIRUVANANTHAPURAM - 695 036, REPRESENTED BY
            ITS MANAGING PARTNER SADACK THAMPY MOHAMMED IBRAHIM.
            BY ADVS.
            S.ANIL KUMAR (TRIVANDRUM)
            B.PRABHAKARAN
            SABU C.J
            RAHUL A.
            APARNA ANIL
            NANCY PRABHAKAR


RESPONDENTS:

    1       THE STATE OF KERALA
            REPRESENTED BY THE SECRETARY (TAXES), GOVERNMENT
            SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
    2       THE ASST. STATE TAX OFFICER (INT.)
            INTELLIGENCE SQUAD NO.V, STATE GOODS AND SERVICES TAX
            DEPARTMENT, NEW PUBLIC OFFICE BUILDING, C BLOCK, VIKAS
            BHAVAN P.O., THIRUVANANTHAPURAM.
    3       THE STATE TAX OFFICER (INT.)
            SQUAD NO.V, STATE GOODS AND SERVICES TAX DEPARTMENT,
            NEW PUBLIC OFFICE BUILDING, C BLOCK, VIKAS BHAVAN P.O.,
            THIRUVANANTHAPURAM - 695 033.
            ADV.JASMINE M.M, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 29608 OF 2021
                              2


               BECHU KURIAN THOMAS, J.
           -----------------------------------------
                W.P.(C) No. 29608 of 2021
           ----------------------------------------
           Dated this the 25th day of January, 2022

                          JUDGMENT

Petitioner challenges Ext.P17 order issued under

Section 130 of the CGST Act, 2017. As per the

averments in the writ petition, it is noticed that the gold

ornaments belonging to the petitioner was intercepted

by the respondents on 14.07.2021 and on verification it

was realized that there was no document accompanying

the goods. There was neither any delivery challan nor

any invoice accompanying the goods and hence

proceedings under Section 130 of the CGST Act was

invoked.

2. The learned counsel for the petitioner, Adv.

S.Anil Kumar, vehemently contented that this is a clear

instance where the respondents acted in excess of their

jurisdiction, warranting the invocation of remedy under

Article 226 of the Constitution of India. It was

submitted that the delivery challan was available in the WP(C) NO. 29608 OF 2021

scooter kept nearby the place where the petitioner's

staff was intercepted and if an opportunity was granted

to recover the said delivery challan, the same would

have proved the veracity of petitioner's contentions.

3. Having heard the arguments of the learned

Government Pleader, Adv. M.M. Jasmine, who submitted

that all contentions raised by the petitioner are matters

of dispute which require an appreciation of facts. The

assessing officer had also entered into a finding that

there was intent to evade tax in the circumstances.

According to the learned Government Pleader this was

not a fit case where the remedy under Article 226 is

available.

4. I have considered the rival contentions. On a

perusal of the impugned order, I find that several

factual aspects have been narrated by the officer, while

arriving at a conclusion of 'intent to evade tax'. All

those aspects are factual matters which require an

appreciation of disputed facts. It is the settled position

of law that this Court cannot interfere under Article 226

of the Constitution when there are disputed facts,

especially in matters of taxation. Petitioner has an WP(C) NO. 29608 OF 2021

alternative and efficacious remedy under Section 107 of

the CGST Act to prefer an appeal and therefore, no

prejudice would be caused to the petitioner, even.

Accordingly, reserving the liberty of the petitioner

to pursue its statutory remedies, this writ petition shall

stand dismissed.

Sd/-

BECHU KURIAN THOMAS JUDGE DM WP(C) NO. 29608 OF 2021

APPENDIX OF WP(C) 29608/2021

PETITIONER EXHIBITS EXHIBIT P1 COPY OF REGISTRATION CERTIFICATE. EXHIBIT P2 COPY OF DELIVERY CHALAN DATED 17/04/2019.

EXHIBIT P2A COPY OF DELIVERY CHALAN DATED 24/07/2019.

EXHIBIT P2B COPY OF DELIVERY CHALAN DATED 10/03/2020.

EXHIBIT P3 COPY OF INVOICE DATED 17/04/2019 ISSUED BY THE HALL MARKING CENTRE IN RESPECT OF EXT.P2.

EXHIBIT P3A COPY OF INVOICE DATED 24/07/2019 ISSUED BY THE HALL MARKING CENTRE IN RESPECT OF EXT.P2A.

EXHIBIT P3B COPY OF INVOICE DATED 10/03/2020 ISSUED BY THE HALL MARKING CENTRE IN RESPECT OF EXT.P2(B).

EXHIBIT P4 COPY OF DELIVERY CHALAN DATED 14/07/2021.

EXHIBIT P5 COPY OF MAHASSAR DATED 14/07/2021 PREPARED BY THE 2ND RESPONDENT. EXHIBIT P6 COPY OF MOV-01 DATED 14/07/2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P7 COPY OF MOV-02 DATED 14/07/2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P8 COPY OF MOV-04 DATED 14/07/2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P9 COPY OF DETENTION ORDER IN NOV -

06 DATED 14/07/2021.

EXHIBIT P10 COPY OF NOTICE DATED 14/07/2021 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P11 COPY OF STATEMENT DATED 15/07/2021 WP(C) NO. 29608 OF 2021

OF SRI.MOHAMED ASHRAF.

EXHIBIT P12 COPY OF REPLY DATED 30/07/21 FILED BY THE PETITIONER.

EXHIBIT P13 COPY OF RELEVANT PAGE OF STOCK REGISTER.

EXHIBIT P14           COPY   OF   REVISED    NOTICE   DATED
                      9/08/2021    ISSUED    BY   THE   3RD
                      RESPONDENT.
EXHIBIT P15           COPY OF REPLY DATED 25/08/2021
                      FILED BY THE PETITIONER.
EXHIBIT P16           COPY OF REPLY DATED 25/09/2021
                      FILED BY THE PETITIONER.
EXHIBIT P17           COPY OF ORDER DATED 18/10/2021
                      ISSUED BY THE 3RD RESPONDENT.

RESPONDENTS EXHIBITS : NIL


                          //TRUE COPY//


                           PA TO JUDGE