M/S. Vijayalaxmi Cashew Company vs The State Of Kerala
2022 Latest Caselaw 7256 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                        WP(C) NO. 18641 OF 2022
PETITIONER/S:

            M/S. VIJAYALAXMI CASHEW COMPANY
            P.B.NO.115, KOCHUPILAMOODU, KOLLAM DISTRICT,
            PIN 691 001.REPRESENTED BY ITS PARTNER, PRAKASH R NAIR,
            S/O R. RAVINDRANATHAN NAIR, AGED 56 YEARS,
            RESIDING AT NANI NIVAS, KOCHUPILAMOODU,
            KOLLAM DISTRICT
            , PIN - 691001
            BY ADV BHARATH MOHAN


RESPONDENT/S:

    1       THE STATE OF KERALA
            REPRESENTED BY ITS PRINCIPAL SECRETARY,
            DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM
            , PIN - 695001
    2       DEPUTY COMMISSIONER(APPEALS)
            STATE GST DEPARTMENT, 3RD FLOOR,
            TAX TOWERS, KARAMANA P.O,THIRUVANANTHAPURAM, PIN -
            695002
    3       THE COMMISSIONER OF STATE TAX
            STATE TAX OFFICE, NEDUMANGAD, FOURTH FLOOR,
            REVENUE TOWER, THIRUVANANTHAPURAM, PIN - 695541
    4       THE ASSISTANT COMMISSIONER OF STATE TAX (INT.)
            SQUAD NO VII, SGST DEPARTMENT, NEYYANTINKARA,
            THIRUVANANTHAPURAM, PIN - 695121
    5       THE CHIEF MANAGER
            INDIAN BANK. BHAVANA NAGAR,
            KADAPPAKADA, KOLLAM
            , PIN - 691008
            BY ADVS.
            GOVERNMENT PLEADER
            SRI.S.EASWARAN, SC, INDIAN BANK

            DR. THUSHARA JAMES (SR GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 18641 OF 2022             2



                                 JUDGMENT

The petitioner suffered an order of penalty, which was

challenged before the 2nd respondent by way of a statutory

appeal. The petitioner was granted a stay of recovery of penalty

when the appeal was pending before the First Appellate

Authority on condition that the petitioner provides a bank

guarantee for the entire amount of penalty. The petitioner

accordingly produced a bank guarantee from the 5 th respondent

bank which was valid till 29.11.2020. On 27.10.2020, the

officials made a request to encash the bank guarantee since the

bank guarantee had not been extended by the petitioner. It is

now brought to my notice that the statutory appeal filed by the

petitioner against the order of penalty has also been dismissed

by the Appellate Authority.

2. Learned counsel appearing for the petitioner submits

that since the State Tax Appellate Tribunal has not been

constituted till date, the petitioner is not in a position to avail of

his remedies and there may be a direction to the respondent

bank not to make payment under the bank guarantee.

3. Learned Senior Government Pleader submits that

since the bank guarantee was kept alive only till 27.10.2020, the

officer had no option but to make a request for encashing the

bank guarantee on 27.10.2020. It is submitted that though the

bank guarantee was so invoked, the amount has not yet been

remitted to the Government account on account of various

communications given by the petitioner.

4. Learned Standing Counsel appearing for the 5th

respondent bank submits that the amount can be remitted

immediately to the Government. Faced with the situation, the

learned counsel appearing for the petitioner would submit that

this writ petition may be closed making it clear that the payment

of penalty shall be treated as provisional and subject to any relief

that the petitioner may obtain from the State Tax Appellate

Tribunal as and when the said Tribunal is constituted.

5. Learned counsel appearing for the petitioner also

submits that if the State Tax Appellate Tribunal is not

constituted, the petitioner will be in a position to challenge the

order of the Appellate Authority directly by way of a writ

petition. I do not propose to make any observation regarding the

said contention of the learned counsel for the petitioner.

Considering the submissions as aforesaid, this writ petition

will stand disposed of, directing the 5th respondent bank to

ensure that the amount covered by the bank guarantee is paid

over to the Government. I also make it clear that all remedies of

the petitioner against the order of the First Appellate Authority

will be left open.

The writ petition is disposed of as above.

sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 18641/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 28.1.2019 IN W.P.(C)NO.2496/2019 OF THIS HON'BLE COURT Exhibit P2 A TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED, 20/02/2019 Exhibit P3 TRUE COPY OF THE ORDER DATED 31.1.2020 ISSUED BY THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT DATED, 17- 11-2020 Exhibit P5 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT DATED, 25- 10-2021 Exhibit P6 TRUE COPY OF THE LETTER DATED 14.12.2021 ISSUED BY THE FOURTH RESPONDENT Exhibit P7 TRUE COPY OF THE LETTER DATED 27.01.2022 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED 1.6.2022 SENT BY THE PETITIONER TO THE 4TH RESPONDENT Exhibit P9 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT AS NO.PVR.27L18-19 DATED,