Sheetal Jain vs The State Tax Officer
2022 Latest Caselaw 10365 Ker

WP(C) NO. 6905 OF 2022               1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                         WP(C) NO. 6905 OF 2022
PETITIONER/S:

            SHEETAL JAIN,
            AGED 35 YEARS
            SALES REPRESENTATIVE,
            M/S. SRI SITAL JEWELLERS, 13/35-5, SRI. RAJENDRAN
            COMPLEX,
            MANDAPALA STREET,
            NELLORE, ANDHRA PRADESH 524 001.
            BY ADVS.
            HARISANKAR V. MENON
            MEERA V.MENON


RESPONDENT/S:

    1       THE STATE TAX OFFICER,
            (INTELLIGENCE),
            MOBILE SQUAD NO. VI, SGST DEPARTMENT, NEDUMANGAD,
            THIRUVANANTHAPURAM 695 541.
    2       THE JOINT COMMISSIONER OF STATE TAX ,
            (APPEALS),
            STATE GST DEPARTMENT TAX TOWERS,
            KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM 695002.
    3       THE COMMISSIONER OF STATE TAX
            STATE GST DEPARTMENT, TAX TOWERS, KILLIPPALAM,
            KARAMANA, THIRUVANANTHAPURAM 695 002.
    4       STATE OF KERALA,
            REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
            GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.
    5       UNION OF INDIA,
            REPRESENTED BY SECRETARY TO GOVERNMENT,
            MINISTRY OF FINANCE (DEPARTMENT OF REVENUE),
            NORTH BLOCK, NEW DELHI 110 001.
            BY ADV JUSTUS S., CGC


OTHER PRESENT:

            0
 WP(C) NO. 6905 OF 2022            2

          ADV. JASMIN M M (GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 6905 OF 2022                    3



                                  JUDGMENT

Petitioner has approached this Court being aggrieved by Ext.P12 order

issued under Section 130 of the CGST/SGST Acts and Ext.P15 appellate order

confirming Ext.P12 order. The grievance of the petitioner is that in the absence

of the Appellate Tribunal, the petitioner is unable to avail the remedy of appeal

to the Appellate Tribunal under Section 112 of the CGST/SGST Acts.

2. The learned counsel for the petitioner states that the goods of the

petitioner, which are now in custody of the respondent department, may be

directed to be released to the petitioner provisionally. It is submitted that the

petitioner will provide sufficient guarantee to ensure that the revenue of the

state is not affected in any manner by any interim direction to release the goods

belonging to the petitioner.

3. The learned Government Pleader vehemently opposes the grant of

interim relief sought for by the petitioner. It is submitted that the scheme

surrounding the provisions of Section 130 of the CGST/SGST Acts is pointed

out to show that a proceeding under Section 130 postulates that there was clear

attempt to evade payment of tax and that a reading of the orders passed by the

adjudicating authority (Ext.P12) and the order of the Appellate Authority

(Ext.P15) will show that the proceedings were legal and proper. It is submitted

that the petitioner is not entitled to any interim relief on production of bank

guarantee as the same is not within the scheme of Section 130 of the

CGST/SGST Acts.

4. Having heard the learned counsel for the petitioner and the

learned counsel appearing for the respondents and on perusal of Ext.P12 order

of the original authority as well as Ext.P15 order of the Appellate Authority, I

am of the view that since Ext.P12 order permits the petitioner to have the goods

released on payment of a total sum of Rs.75,20,478/-, and considering the fact

that the goods in question are stated to be gold ornaments, the goods in

question can be directed to be released to the petitioner on the petitioner

remitting a sum of Rs.75,20,478/- (Rupees Seventy five lakhs twenty thousand

four hundred and seventy eight only) before the 1 st respondent. The payment

shall be treated as provisional and shall always be subject to any relief that the

petitioner may obtain from the Appellate Tribunal as and when it is

constituted. I make it clear that once the Appellate Tribunal is constituted, it

will be open to the petitioner to agitate the matter before the Appellate

Tribunal.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE okb/ //True copy// P.S. to Judge

APPENDIX OF WP(C) 6905/2022

PETITIONER EXHIBITS Exhibit P1 COPY OF REGISTRATION CERTIFICATE OF THE PETITIONER DTD. 21.09.2017.

Exhibit P2 COPY OF DECLARATION AUTHORITY LETTER ISSUED BY SRI SITAL JEWELLERS DTD 24.11.2020.

Exhibit P3 COPY OF DECLARATION AUTHORITY LETTER ISSUED BY SRI SITAL JEWELLERS DTD 24.11.2020.

Exhibit P4 COPY OF DECLARATION AUTHORITY LETTER ISSUED BY SRI SITAL JEWELLERS DTD 24.11.2020.

Exhibit P5 COPY OF DECLARATION AUTHORITY LETTER ISSUED BY SRI SITAL JEWELLERS DTD 24.11.2020.

Exhibit P6 COPY OF TRAIN TICKET OF THE PETITIONER FORM NELLORE TO TRIVANDRUM IN TRANSACTION ID NO. 1000002458014272. DTD. 24.11.2020.

Exhibit P7 COPY OF TRAIN TICKET OF THE PETITIONER FROM TRIVANDRUM TO NELLOORE IN PNR NO. 430667170 DTD. 29.11.2020.

Exhibit P8 COPY OF SHORT VISIT REGISTRATION CERTIFICATE OF THE PETITIONER. DTD. 22.11.2020.

Exhibit P9 COPY OF NOTICE ISSUED BY THE IST RESPONDENT DTD. 01.12.2020.

Exhibit P10 COPY OF APPLICATION WITH AN AFFIDAVIT FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DTD. 01.12.2020.

Exhibit P11 COPY OF REPLY FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DTD 15.12.2020.

Exhibit P12 COPY OF ORDER ISSUED BY THE IST RESPONDENT DTD. 31.12.2020.

Exhibit P13 COPY OF JUDGMENT IN WPC NO. 1417/2021 OF THIS HONBLE COURT DTD. 19.01.2020.

Exhibit P14 COPY OF JUDGMENT IN W.A/ NO. 489/2021 OF THIS HONBLE COURT DTD. 16.03.2021.

Exhibit P15 COPY OF ORDER IN GSTA NO. 18/21 ISSUED BY THE 2ND RESPONDENT DTD. 20.01.2022.

Exhibit P16 COPY OF JUDGMENT IN WPC NO. 21907/2020 OF THIS HONBLE COURT DTD. 06.11.2020.