Dismissed

The Joint Commissioner (Appeals)-Ii v. Sanskruthi Motors

Kerala HC19 Dec 2022WA/1932/2022

Case brief

AI extract

What is this about?

A writ appeal was filed by State Tax officials against an order of the Single Judge who quashed a major penalty and tax demand for non-compliance with e-way bill rules. The High Court confirmed the Single Judge's order to remit the matter for reconsideration of the penalty amount, effectively dismissing the appeal.

What did the court decide?

The writ appeal was dismissed confirming the order of the Single Judge remitting the matter for reconsideration of the penalty amount.

The Joint Commissioner (Appeals)-Ii Vs Sanskruthi… — Writ and Judicial Review | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE S.V.BHATTI

¶4

¶5

THE HONOURABLE MR.JUSTICE BASANT BALAJI

¶6

MONDAY, THE 19TH DAY OF DECEMBER 2022/28TH AGRAHAYANA, 1944

¶7

W.A. NO.1932 OF 2022

¶8

(AGAINST THE JUDGMENT WP(C)17223/2022 OF HIGH COURT OF KERALA)

¶9

APPELLANTS/RESPONDENTS IN W.P.(C):

¶10

1THE JOINT COMMISSIONER (APPEALS)-II,
STATE GOODS & SERVICES TAX DEPARTMENT, ERANHIPALAM,
KOZHIKODE, PIN – 673 006

¶11

2THE STATE TAX OFFICER (INT)
SQUAD NO.I, WAYANAD DISTRICT, PIN – 673 006
BY PUBLIC PROSECUTOR

¶12

RESPONDENT/PETITIONER IN W.P.(C):

¶13

SANSKRUTHI MOTORS,

¶14

FLAT NO.1, GURUKRUPA APARTMENT, PLOT NO.JI-J2,
SECTOR NO.3, BHOSARI, PUNE, MAHARASTRA-411 039,
REPRESENTED BY N.R.KALKUTE, PARTNER,

¶15

BY ADV V.PREMCHAND
GOVERNMENT PLEADER, SMT. M.M. JASMIN

¶16

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

W.A. No.1932 of 2022

¶18

¶19

JUDGMENT

¶20

(Dated 19^th December, 2022)

¶21

Basant Balaji, J.

¶22

Respondents Nos.1 and 2 in W.P.(C) No.17223 of 2022 are the appellants and the respondent was the petitioner therein. The writ petition was filed by the petitioner to call for records leading to Ext.P3 and Ext.P4 and to quash the same. A further

¶23

prayer was also sought to direct the 1^st respondent to consider Ext.P4 appeal without insisting on a pre-deposit of 10% of the disputed tax.

¶24

The petitioner being a transport contractor transport a new tipper lorry which was kept at the showroom of M/s.Tata Motors Ltd., Thally, Tamil Nadu to M/s.Popular Mega Motors (India Pvt. Ltd.), Kozhikode. The Assistant Sales Tax Officer Surveillance Squad No.II, intercepted the lorry on 09.07.2019 at

¶25

12.20 hours at Muthanga at Wayanad. The value of the vehicle

¶26

W.A. No.1932 of 2022

¶27

¶28

as per invoice was Rs.23,96,505.64 including IGST of

¶29

Rs.5,24,016.86. The driver was in possession of the Tax Invoice dated 29.6.2019 and E Way Bill No.531117754167 dated

¶30

3.7.2019. The vehicle was detained by the officials of the department as the E Way Bill expired on 8.7.2019 and the interception was on 9.7.2019 at 12.20 p.m. Ext.P3 order was passed imposing a penalty of Rs.5,20,017/- along with IGST of Rs.5,24,017 under Section 129(1)(a) of the IGST/CGST Act, 2017

¶31

and directed payment of the amounts not later than 15 days on receipt of the order.

¶32

The petitioner preferred Ext.P4 appeal against Ext.P3 order. The contention raised by the counsel for the petitioner is that there was no warrant for the imposition of any penalty on the petitioner as there was no suppression or evasion of tax. The

¶33

E Way Bill was valid up to 11.59 p.m. on 8.7.2019 and the vehicle

¶34

was intercepted on the very next day. The explanation given by

¶35

W.A. No.1932 of 2022

¶36

¶37

the petitioner for the delay was that there was some mechanical

¶38

problem to the vehicle on its way to Kozhikode and that the vehicle was taken to a workshop since the Bandhipur Highway was closed during night hours. The learned single Judge relies on the judgment of M/s.Satyam Shivam Papers Pvt. Ltd. and Another v. Assistant Commissioner (ST) and others [2021 SCC Online TS 698: (2021) 50 GSTL 459] and also a similar case that arose from the Telungana High Court affirmed by the Hon’ble Supreme Court in SLP (C) No.21132 of 2021 allowed the writ petition and Ext.P3 was quashed. Thereafter the learned single Judge remanded it to the 1^st respondent to consider the amount of penalty to be imposed on the petitioner, taking note of the findings in the judgment and after affording an opportunity of hearing the petitioner. Aggrieved by the said judgment, respondents Nos 1 and 2 have filed this appeal.

¶39

W.A. No.1932 of 2022

¶40

¶41

Heard learned Government Pleader for the

¶42

petitioners and Adv.V.Prem Chand for the respondent.

¶43

The learned senior Government Pleader argues that

¶44

the petitioner could not have transported the tipper lorry after the expiry of the E Way Bill without extending the validity of it provided under Rule 138(10) of the CGST Rules. The power of detention under Section 129 of the Act is to see that there is no

¶45

evasion of tax and contrary to it penal provisions can be invoked.

¶46

The petitioner has already availed the remedy of appeal and in such a situation the petitioner cannot invoke the jurisdiction of

¶47

this Court under Article 226 of the Constitution of India.

¶48

The learned counsel for the respondent on the other hand argued that the E Way Bill was valid up to 11.59 on 08.07.2019 and the vehicle was intercepted at 12.20 a.m as per Ext.P1 and 12.20 p.m., as per Ext.P3. Whatever it be, the vehicle

¶49

was intercepted within 24 hours from the expiry of the E Way

¶50

W.A. No.1932 of 2022

¶51

¶52

Bill. The goods were accompanied by an invoice and also the E Way Bill. Moreover, the only reason in Ext.P3 for imposing a penalty is that the books of accounts or documents were not produced for verification as directed by the Tax Officer. The learned single Judge distinguished the judgment of the Division Bench in Ranjilal Damodaran v. Assistant State Tax Officer and another [2020 SCC Online Kerala 23975] with that of Satyam Shivam's case cited (supra) and held that the imposition of major penalty for travelling with expired E Way Bill was not justified. Moreover, in Ext.P3, there is no finding that there was an attempt to evade tax. The learned single Judge has quashed Ext.P3 which imposed a major penalty along with the demand of IGST and directed only reconsideration of the amount of penalty

¶53

to be imposed on the petitioner in view of the judgment cited above.

¶54

Being an intra-court appeal, we are not inclined to interfere

¶55

W.A. No.1932 of 2022

¶56

¶57

with the discretion exercised by the learned single Judge in remitting the matter to the authorities for fresh consideration

¶58

only on the amount of penalty. Therefore, confirming the order

¶59