Kerala High Court
M/S. Shri Coimbatore Jewellers India ... vs The Assistant State Tax Officer on 31 May, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
WA NO. 716 OF 2024
AGAINST THE JUDGMENT DATED 18.03.2024 IN WP(C) NO.7720 OF
2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
M/S. SHRI COIMBATORE JEWELLERS INDIA PRIVATE
LIMITED, 63-A, 1ST AGRAHARAM, SALEM,
REPRESENTED BY ITS MANAGING DIRECTOR K R
PREMNATH, PIN - 636001
BY ADVS.
SRI.AJI V.DEV
SRI.ALAN PRIYADARSHI DEV
SRI.K.C.MOHANDAS
SRI.S.SAJEEVAN
RESPONDENTS/RESPONDENTS:
1 THE ASSISTANT STATE TAX OFFICER,
SQUAD NO.V, STATE GST DEPARTMENT,
PALAKKAD, PIN - 678001
2 THE JOINT COMMISSIONER (APPEALS),
STATE GST DEPARTMENT,
STATE GST COMPLEX, POOTHOLE,
THRISSUR, PIN - 680004
3 THE ENFORCEMENT OFFICER
SQUAD NO.1, SGST DEPARTMENT, STATE GST BHAVAN,
BEHIND CIVIL STATION, PALAKKAD, PIN - 678001
4 THE COMMISSIONER OF STATE GOODS AND SERVICES
TAX DEPARTMENT, TAX TOWERS, KARAMANA,
THIRUVANANTHAPURAM, PIN - 695002
:2:
WA No.716 of 2024
BY SR.GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
:3:
WA No.716 of 2024
JUDGMENT
Dr. A.K.Jayasankaran Nambiar, J.
This Writ Appeal is preferred against the judgment dated
18.03.2024 of the learned Single Judge in WP(C). No.7720 of 2024.
2. The brief facts necessary for the disposal of the Writ Appeal
are as follows:
The appellant herein a private limited company is engaged in the
business of jewellery. A consignment of jewellery worth Rs.58,21,206/-
was intercepted by the respondents as it was not accompanied by the
relevant documents as mandated under the provisions of the Central
Goods and Services Tax Act/State Goods and Services Tax Act, 2017
(hereinafter referred to as the "CGST/SGST Act") and the Rules. The
jewellery items were therefore seized and an order was passed
determining tax and penalty. The appellant remitted the tax and
penalty, and consequently, the ornaments that were seized were
released to the appellant by Ext.P5 order dated 18.12.2017. Aggrieved
by Ext.P5 order, the appellant preferred an appeal two years later,
which came to be rejected on the ground of delay, vide Ext.P12 order.
Without impugning the said appellate order, the appellant approached
this Court through the Writ Petition aforementioned on the specious
contention that he had erroneously preferred an appeal against Ext.P5
order dated 18.12.2017 whereas he ought to have insisted on an
adjudication order without remitting the demanded tax and penalty, in
which event the respondents would have had to pass an order as
mandated under Section 129 of SGST Act, and thereafter, he could have
challenged that order before the Appellate Authority.
3. The learned Single Judge who considered the Writ Petition
found no substance to entertain the Writ Petition on the prayers
aforementioned and consequently, dismissed the Writ Petition, inter
alia, on the ground of delay in approaching this Court.
4. Before us, it is the contention of Sri. Aji V. Dev, the learned
counsel for the appellant that the order against which he had preferred
an appeal (Ext.P5) cannot be said to be an order contemplated under
the statute for there was no formal adjudication by the authorities at
first instance. It is his submission therefore that the appeal preferred
against Ext.P5 order was not maintainable, and hence the respondents
have to now pass a final order as envisaged under Section 129 against
which alone he needs to pursue his appellate remedy if need be.
5. We are afraid, we cannot accept the submissions of the learned
counsel for the appellant. At the time of seizure of the goods by the
authorities under the CGST/SGST Act, there was an option for the
appellant to either pay the amounts demanded and avoid an
adjudication or to contest the seizure and insist on an adjudication
order. For reasons best known to him, he chose to make the payment
and consequently, Ext.P5 order was passed releasing the goods to him
by making it clear that in view of the payment the authorities were not
proceeding against him for determination of any tax and penalty. If the
appellant had a case that the payment was a mistake, he should have
preferred an application for a refund of the tax/penalty paid by him and
sought for an adjudication on the refund application. On the contrary,
he chose to prefer an appeal against Ext.P5 order which was actually in
his favour, and thereafter, suffered a dismissal of an appeal at the hands
of the Appellate Authority. For this curious predicament, we find that
the appellant is solely to blame. At this stage of the proceedings, where
this appeal is filed more than 7 years after the release of the goods to
the appellant, we see no reason to take a view different from that of the
learned Single Judge, who in our view rightly dismissed the Writ
Petition.
The Writ Appeal fails and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
mns
