M/S. Benlion Coir Industries vs The Assistant Commissioner ...
2022 Latest Caselaw 8176 Ker

       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                       PRESENT
   THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
               WP(C) NO. 27585 OF 2018
PETITIONER:

         M/S. BENLION COIR INDUSTRIES,ASSOCIATED
         WEIGH BRIDGE BUILDINGS, 358K, M C ROAD,
         VATTAKKATTUPADY, PERUMBAVOOR, REPRESENTED BY
         ITS PROPRIETOR BENNY MATHEW
         RESIDING AT 2/509,
         VANCHIYAPURAM,PIRIVU,SULEESWARANPATTY.P.O.,
         POLLACHI-642 006, COIMBATORE DISTRICT, TAMIL
         NADU.
         BY ADVS.
         P.M. POULOSE
         BROONO P.D.

RESPONDENTS:

   1     THE ASSISTANT COMMISSIONER (ASSESSMENT)
         SPECIAL CIRCLE, COMMERCIAL TAXES,
         PERUMBAVOOR, PIN - 683542
   2     THE INTELLIGENCE SQUAD
         NO.V,MATTANCHERRY AT MINI CIVIL STATION,
         PERUMBAVOOR, PIN-, PIN - 683542
   3     COMMISSIONER OF STATE TAXES,
         TAX TOWER, KARAMANA,THIRUVANANTHAPURAM., PIN
         - 695002
   4     STATE OF KERALA
         REPRESENTED BY ITS SECRETARY TO TAXES,
         SECRETARIAT, THIRUVANANTHAPURAM, PIN -
         695002
   5     CENTRAL BOARD OF INDIRECT TAXES
         AND CUSTOMS,REPRESENTED BY ITS CHAIRMAN,
         DEPARTMENT OF REVENUE, NORTH BLOCK, NEW
         DELHI, PIN - 110001
 W.P.(C)No.27585 OF 2018

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     6      UNION OF INDIA,
            REPRESENTED BY ITS PRINCIPAL SECRETARY,
            MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,
            NORTH BLOCK, NEW DELHI, PIN - 110001
     7      THE DEPUTY COMMISSIONER
            OF STATE TAXES(INT),STATE GOODS AND SERVICE
            TAX DEPARTMENT, THIRUVANANTHAPURAM., PIN -
            695001
            BY ADVS.

            R5 BY SR.ADV.SRI.SREELAL WARRIER

OTHER PRESENT:

            SMT. RESMITHA R. CHANDRAN - GP R1 TO R4 & R7


         THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 01.07.2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.27585 OF 2018

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                             JUDGMENT

The writ petition is filed by the petitioner challenging

101st Constitutional Amendment of the Kerala State Goods and

Services Tax Act, 2017 stating that the provisions of the Kerala

Value Added Tax Act,2003 can be enforced only until the expiry of

one year from the date on which the nationwide goods and service

tax was implemented or until the amendment was repealed by a

competent Legislature and the petitioner further challenges

Exts.P2 and P5 orders under Sec.67(1) of the KVAT Act, 2003 for

the assessment year 2012-13 and 2013-14, passed by the

respondents stating that it is unconstitutional as it is ultra vires of

the Constitution of India.

2. Heard the learned counsel for the petitioner and

the learned Government Pleader.

3. The aforesaid challenge of 101 st Constitutional

Amendment of the Kerala State Goods and Services Tax Act,

2017 has been considered in Sheen Golden Jewels (India)

Pvt.Ltd. v. State Tax Officer (IB)-1, Investigation Branch,

Thiruvananthapuram and others [2019 KHC 205] and decided

against the petitioner. Hence, in view of the judgment in Sheen W.P.(C)No.27585 OF 2018

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Golden Jewels (Supra), the petitioner is not entitled to get any

relief against the said challenge.

4. However, as far as Exts.P2 and P5 orders passed

by the respondents are concerned, the petitioner has to avail the

remedy of appeal/revision before the appellate authority and I am

of the opinion that, the writ petition can be disposed of directing

the petitioner to approach the statutory authorities by way of

appeal.

5. Hence, the writ petition is disposed of as follows:

The petitioner, if so advised, shall file an

appeal/revision along with petition for condonation of delay and

petition for stay before the competent appellate authority within a

period of one month from the date of receipt of a copy of this

judgment. The appellate authority shall consider and pass orders

on the petition for condonation of delay as well as the petition for

stay, within a period of one month thereafter, after affording an

opportunity of hearing to the petitioner. The appellate authority

shall take a lenient view while considering the petition for

condonation of delay, taking into account the pendency of the writ

petition before this Court and pass appropriate orders so that the W.P.(C)No.27585 OF 2018

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statutory remedy of appeal/revision is not lost to the petitioner.

The respondents shall not take any coercive steps to recover the

amount covered by Ext.P2 and Ext.P5 for a period of two months

from the date of receipt of a copy of this judgment. In case of

failure by the petitioner to comply with the directions as above in

filing the appeal/revision and petitions, the stay of recovery of

Ext.P2 and Ext.P5 granted shall stand vacated. The petitioner

shall produce a copy of this judgment along with a copy of this writ

petition, before the second respondent.

Sd/-

SHOBA ANNAMMA EAPEN, JUDGE MBS/ W.P.(C)No.27585 OF 2018

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APPENDIX OF WP(C) 27585/2018

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REPLY DATED 8.2.2017 SENT BY PETITIONER TO THE INTELLIGENCE OFFICER, EXHIBIT P2 TRUE COPY OF THE ORDER NO.ISM/V/20/2014-15(2012-13) DATED 18.12.2017 ISSUED BY 2ND RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICE DATED 6.1.2018 ISSUED BY 2ND RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE REPLY DATED 8.2.2017 GIVEN BY PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE PENALTY ORDER NO.ISM/V/20/2014-15(2013-14)DATED 18.12.2017 ISSUED BY 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE DEMAND NOTICE DATED 6.1.2018 DIRECTING THE PETITIONER TO PAY THE AMOUNT OF RS.48,22,708/- ISSUED BY 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER IN WPC.NO.11355/2018 DATED 4.4.2018.

EXHIBIT P8 TRUE COPY OF THE ORDER IN WPC.NO.13136/2018 DATED 12.4.2018.

EXHIBIT P9 TRUE COPY OF THE ORDER IN WPC.NO.14276/2016 DATED 24.4.2018