Kerala High Court
Govindarajan M.P vs State Of Kerala on 6 September, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:67896
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
WP(C) NO. 7730 OF 2022
PETITIONER:
GOVINDARAJAN M.P.,
AGED 56 YEARS,
PROPRIETOR,S/O.JANAKI AMMA, M/S. UNIQUE SURGICALS,
R.S ROAD, PATTAMBI, PALAKKAD DISTRICT-679 303,
RESIDING AT MELEPAT PALLIYALIL, SOUTH PANAMANNA P.O.,
OTTAPALAM, PALAKKAD.
BY ADV VISHNU BHUVANENDRAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY (TAXES), COMMERCIAL TAX
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 ASSISTANT STATE TAX OFFICER (INTELLIGENCE),
SQUAD NO.V, SGST DEPARTMENT KERALA, THRISSUR-680 004.
3 JOINT COMMISSIONER (APPEALS),
STATE GOODS AND SERVICES TAX DEPARTMENT (KERALA), 5TH
FLOOR, STATE GST COMPLEX, BEHIND CIVIL STATION,
PALAKKAD-678 001.
SMT. THUSHARA JAMES (SR. GP)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.09.2024, ALONG WITH WP(C).15498/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NOS. 7730/2022 AND 15498/2021
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2024:KER:67896
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
WP(C) NO. 15498 OF 2021
PETITIONER:
GOVINDARAJAN M.P.,
AGED 56 YEARS,
S/O. JANAKI AMMA, PROPRIETOR, M/S. UNIQUE
SURGICALS, R.S. ROAD, PATTAMBI, PALAKKAD DISTRICT-
679 303, RESIDING AT MELAPAT PALLIYALIL, SOUTH
PANAMANNA P.O., OTTAPALAM, PALAKKAD.
BY ADVS.
VISHNU BHUVANENDRAN
RESHMA UNNIKRISHNAN
B.ANUSREE
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY (TAXES), DEPARTMENT OF
TAXES, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 ASSISTANT STATE TAX OFFICER (INTELLIGENCE),
SQUAD NO.V, SGST DEPARTMENT KERALA,
THRISSUR-680 004.
SMT.THUSHARA JAMES, SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.09.2024, ALONG WITH WP(C).7730/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 7730/2022 AND 15498/2021
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JUDGMENT
The petitioner in these cases are common and is stated to be a
dealer in trading of medical devices, surgical disposable devices and
medical consumables. While W.P(C)No.7730 of 2022 has been filed
challenging Ext.P7 Order of the Appellate Authority.
W.P(C)No.15498/2021 has been filed seeking direction to the 2 nd
respondent to release the goods belonging to the petitioner.
2. The petitioner generally supplies goods to his
customers through courier service. According to the petitioner in the
month of July 2021, the petitioner received orders for certain goods
from various customers and the petitioner accordingly engaged the
courier service that he normally uses for transporting the goods. It is
submitted that the goods were accompanied by all documents as
contemplated by the CGST/SGST Acts, including invoices, e-way bills
etc. It is submitted that the vehicle in which the goods were being
carried was intercepted by the authorities upon the allegation that the
vehicle number mentioned in the e-way bill is different from the vehicle
number in which the goods were being carried. According to the
petitioner, the petitioner had correctly entered the details of the vehicle
in which the goods were loaded and the courier agency for reasons best
known to them had changed the vehicle. It is submitted that on
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enquiries, petitioner understands that the vehicle had to be changed on
account of the fact that the vehicle in which the goods were originally
loaded had met with an accident. It is submitted that the petitioner was
totally unaware of the fact that the goods had been loaded on to another
vehicle. It is submitted that in order to get the release of the goods, the
petitioner had to furnish a bank guarantee pursuant to orders of this
Court in WP(C) No. 15498 of 2021 and thereafter, the proceedings were
continued and culminated in the name of the transporter of the goods.
It is submitted that though the petitioner filed an appeal before the First
Appellate Authority, the appeal was dismissed by the order marked as
Ext.P7 in WP(C) No. 7730 of 2022. It is submitted that the petitioner
had even produced CCTV visuals to show that the goods were loaded
from the petitioner's godown on to a vehicle bearing the registration
number shown in the e-way bill. It is submitted that the further
allegation against the petitioner is that the e-way bill had expired at the
time of interception. It is submitted that this may have been on account
of the fact that the original vehicle met with an accident and the goods
had to be loaded on to another vehicle for further carriage to the
destination. It is submitted that since the petitioner was not aware of
any of the aspects, including change of vehicle, the petitioner could not
re-validate the e-way bill and such circumstances should not lead to
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imposition of penalty under Section 129 of the CGST/SGST Acts.
3. The learned counsel appearing for the petitioner also
placed reliance on the judgment of this Court in J.P.Metals & Roofings
v. Assistant Tax Officer and Others; 2024 SCC OnLine Ker 4951 in
support of his contention.
4. The learned Senior Government Pleader refers to
the counter affidavit filed in WP(C) No.7730 of 2022 to contend that the
proceedings were rightly initiated against the petitioner under
provisions of Section 129 of the CGST/SGST Acts. It is pointed out that
at the time of interception of the vehicle it was noticed that the vehicle
was different from the one mentioned in the e-way bill and e-way bill
had also expired. It is submitted that the penalty under Section 129 of
the CGST/SGST Acts was imposed on the petitioner on the finding that
there was no satisfactory explanation for expiry of the e-way bill and for
carrying the goods in a vehicle other than the vehicle mentioned in the
e-way bill . It is submitted that according to the statement given by the
transporter, the petitioner was fully aware that the goods were being
transported in a vehicle other than the vehicle mentioned in the e-way
bill. It is submitted that in such circumstances, there is absolutely no
illegality in the order of the original authority imposing penalty under
Section 129 of the CGST/SGST Acts and also in the order of Appellate
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Authority rejecting the appeal filed by the petitioner.
5. The learned counsel appearing for the petitioner in
reply would submit that the original authority and the Appellate
Authority have not considered any contention taken by the petitioner in
a proper manner. It is reiterated that the petitioner had produced CCTV
visuals to show that the goods were actually loaded on to the vehicle
bearing the registration number as mentioned in the e-way bill.
However, the said aspect was also not considered by the authority. It is
submitted that the matter has therefore to be reconsidered by the
competent authorities.
6. Having heard the learned counsel for the petitioner and
the learned Senior Government Pleader and having regard to the facts
and circumstances of the case, I am of the opinion that the issues raised
by the petitioner as reasons for the goods being transported in a vehicle
other than the vehicle mentioned in the e-way bill and for the expiry of
the e-way bill are matters that ought to have been considered by the
competent authorities before imposing a penalty under Section 129 of
the CGST/SGST Acts. If there was no attempt to evade tax and the
discrepancies noted were on account of reasons beyond the control of
the petitioner, this was also a matter that ought to have been considered
by the original authority / Appellate Authority while passing orders.
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7. I do not see the order of the Appellate Authority as
having considered the aforesaid matters which may lead to the
conclusion that the petitioner had no intention of evading any tax and
the discrepancies occurred on account of reasons beyond the control of
the petitioner. Though the petitioner may be justified in approaching
this Court challenging the order of the Appellate Authority on account
of the fact that the Tribunal has not been constituted under the
provisions of Section 112 of the CGST/SGST Acts since the adjudication
of the issues involve disputed questions of fact it may not be proper for
this Court to entertain a challenge to the order passed by the Appellate
Authority in a writ petition under Article 226 of the Constitution of
India.
8. In the light of the above findings, Ext.P7 order in
WP(C) No. 7730 of 2022 is quashed. The appeal filed by the petitioner
against Ext.P2 order in WP(C) No.7730 of 2022 will stand restored to
the file of the Appellate Authority, who shall pass fresh orders, after
affording a further opportunity of hearing to the petitioner. While
passing orders, the Appellate Authority shall have due regard to the
judgment of this Court in J.P.Metals & Roofings (supra) and any other
judgment that the petitioner may wish to rely upon before the Appellate
Authority. Considering the fact that the petitioner has furnished a bank
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guarantee and the said bank guarantee is being extended from time to
time, the Appellate Authority shall endeavor to pass fresh orders, as
directed above, within a period of six weeks from the date of receipt of a
certified copy of this judgment.
Sd/-
GOPINATH P.
JUDGE
DK
2024:KER:67896
APPENDIX OF WP(C) 15498/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE E-WAY WILL BEARING
NUMBER 561278724855 DATED 19/07/2021 FOR
THE PARTY NAMED MEDICAL SUPPLIES.
Exhibit P2 THE TRUE COPY OF THE E-WAY BILL BEARING
NUMBER 571278720351 DATED 19/07/2021 FOR
THE PARTY NAMED HI-CARE ENTERPRISES.
Exhibit P3 THE TRUE COPY OF THE E-WAY BILL BEARING
NUMBER 551278728317 DATED 19/07/2021 FOR
THE PARTY NAMED VENAD SRUGICALS (TVM).
Exhibit P4 THE TRUE COPY OF THE TAX INVOICE BEARING
NO. US-01032/2021-22 DATED 19/07/2021.
Exhibit P5 THE TRUE COPY OF THE E-WAY BILL BEARING
NUMBER 551279698585 FOR THE PARTY NAMED
PROMPT SUPPLIERS.
Exhibit P6 THE TRUE COPY OF THE ORDER FOR PHYSICAL
VERIFICATION/INSPECTION OF THE
CONVEYANCE, GOODS AND DOCUMENTS ISSUED BY
THE 2ND RESPONDENT TO ONE ALEX ANTO.
Exhibit P7 THE TRUE COPY OF THE REPRESENTATION
SUBMITTED BEFORE THE 2ND RESPONDENT DATED
26/07/2021.
Exhibit P8 TRUE COPY OF THE C.C.T.V VISUALS FROM THE
PETITIONER'S OFFICE EVIDENCING THAT THE
VEHICLE FOR WHICH THE E-WAY BILL WAS
ACTUALLY TAKEN HAD CAME TO THE SHOP FOR
COLLECTING THE GOODS ON 19/07/2021.
Exhibit P9 TRUE COPY OF THE LETTER DATED 11.08.2021
OF THE ASSISTANT COMMISSIONER OF
INTELLIGENCE
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APPENDIX OF WP(C) 7730/2022
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORDER FOR PHYSICAL
VERIFICATION/INSPECTION OF THE
CONVEYANCE, GOODS AND DOCUMENTS ISSUED BY
THE 2ND RESPONDENT TO ONE ALEX ANTO
22.07.2021
Exhibit P2 TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT FOR DEMAND OF TAX AND PENALTY
DATED 09.09.2021
Exhibit P3 THE TRUE COPY OF THE LETTER DATED
20.10.2021 ISSUED TO THE DEPUTY
COMMISSIONER (INTELLIGENCE) KERALA STATE
GST DEPARTMENT, THIRSSUR BY THE
PETITIONER
Exhibit P4 TRUE COPY OF THE REPLY NOTICE ISSUED BY
THE OFFICE OF THE ASSISTANT COMMISSIONER
(INTELLIGENCE) INTIMATING THAT DRC 07 IS
ISSUED THROUGH ONLINE ON 22.10.2021.
Exhibit P5 TRUE COPY OF FORM GST DRC-07 (REFERENCE
NO. ZD3210210033791) DATED 23.10.2021
Exhibit P6 TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER DATED 25.10.2021
Exhibit P7 TRUE COPY OF THE ORDER DATED 27.01.2022
IN GSTA NO. 112/2021 ON THE FILES OF THE
3RD RESPONDENT
Exhibit P8 TRUE COPY OF THE LETTER DATED 05.03.2022
ISSUED FROM THE OFFICE OF THE DEPUTY
COMMISSIONER OF STATE TAX(INTELLIGENCE)
TO THE PETITIONER
