Dismissed

M/S.Forus Motors v. State Tax Officer

Kerala HC8 Jul 2019WA/1574/2019

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ appeal challenging a lower court order that dismissed a writ petition against an order imposing tax and penalty for alleged failure to generate an e-way bill. The court held that the appellate authority could validly decide the legal question raised.

What did the court decide?

The writ appeal was dismissed, confirming the dismissal of the underlying writ petition.

M/S.Forus Motors Vs State Tax Officer — Contract and Commercial Disputes | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

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WA.No.1574 of 2019

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JUDGMENT IN WP(C) 16894/2019 of HIGHCOURT OF KERALA DATED 21.6.2019

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APPELLANT/PETITIONER:

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M/S.FORUS MOTORS

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TUDA ROAD, KOVILAKATHUPADAM, THRISSUR-22, REPRESENTED BY ITS MANAGING PARTNER, RAJEEV K.

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BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA

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RESPONDENTS/RESPONDENTS:

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1 STATE TAX OFFICER

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SECOND CIRCLE, STATE GST DEPT., THRISSUR-680001.

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2 THE ASST. STATE TAX OFFICER, INTELLIGENCE SQUAD NO.III, DEPARTMENT OF STATE GST, THRISSUR-680001.

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SR GP.SRI. MOHAMMED RAFIQ

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No.1574 of 2019

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:-2-:

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C.K. ABDUL REHIM, &

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R.NARAYANA PISHARADI, JJ.

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W.A. No.1574 of 2019

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Dated this the 8^th day of July, 2019

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J U D G M E N T

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C.K.ABDUL REHIM, J.

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The appellant is the petitioner in the writ petition, W.P. (C)No.16894 of 2019. The writ petition was dismissed by leaving liberty to the appellant to approach the appellate authority. This appeal is filed on raising contention that the subject matter involves a legal question which need to have decided by this Court, which the appellate authority may not be in a position to adjudicate upon.

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Challenge in the writ petition was against Ext.P6 order passed by the 2^nd respondent, under Section 129(3) of the Central Goods and Services Tax Act, 2017. On an earlier occasion, the interception of the movement of the goods

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W.A.No.1574 of 2019

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:-3-:

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transported and the consequential issuance of the detention notice, were challenged in a writ petition filed before this Court. In Ext.P5 order passed by a learned Judge of this Court, the respondents were directed to release the vehicle (goods), subject to condition of the appellant filing an undertaking that the vehicle will be produced as and when required by the respondents and that no third party interest would be created upon the vehicle. Thereafter, the 2^nd respondent passed Ext.P6 order imposing tax and penalty under sub-section (3) of Section 129. Challenge against the said order was declined through the judgment impugned, discernibly because of the fact that an effective alternative remedy is available against the said order.

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The detention was on the basis of an alleged irregularity that the appellant had failed to generate the e- way bill, as required under Rule 138 of the Central Goods and Services Tax Rules. Contention raised is that, generation

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W.A.No.1574 of 2019

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:-4-:

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of e-way bill was not required with respect to the transport in question, in view of sub-rule (14)(b) of Rule 138. It was argued that the goods in question was transported not by means of a motorised conveyance. The 2^nd respondent had considered this issue and found that, generation of e-way bill was mandatory, because the goods transported was a new vehicle (Autorickshaw) transported from the principal place of business of the appellant to its branch by specifically raising a 'delivery note'. The consignment was by way of “Branch Transfer” (stock transfer). Further it was found that the new vehicle which was transported had carried with it a temporary registration number and that the appellant could have used the said number for filing details while generating the e-way bill.

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Learned counsel for the appellant contended that,

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the specific question raised was not answered by the 2^nd respondent while issuing the impugned order. Further, he

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W.A.No.1574 of 2019

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:-5-:

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had drawn our attention to an observation made by the learned single Judge while issuing Ext.P5 order, that the ground on which the detention was effected is prima facie not sustainable. But we are of the considered opinion that, such an observation cannot be taken as a finding, which will bind upon the respondents in deciding the issue.

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The only question to be considered is whether the relegation made by the learned single Judge to avail the alternative remedy, was justified or not. Contention of the appellant is that the appellate authority may not be able to look into the grounds raised, being 2a question of law to be decided. We cannot accept such a contention because the appellate authority can very well decide as to whether there existed any statutory obligation on the part of the appellant in generating the e-way bill, while transporting the goods in question. Therefore, we are of the view that the liberty reserved by the learned single Judge for availing the

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W.A.No.1574 of 2019

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:-6-:

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statutory remedy, is not in any way illegal, erroneous or improper.

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Consequently, the writ appeal fails and the same is

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hereby dismissed.

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Sd/-

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C.K.ABDUL REHIM JUDGE

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Sd/-

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R.NARAYANA PISHARADI JUDGE

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ami/

M/S.Forus Motors v. State Tax Officer

Case brief

What is this about?

What did the court decide?

M/S.Forus Motors v. State Tax Officer

Case brief

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