Directed to approach GST Tribunal as and when it is constituted: Kerala HC

Hameed Jewellers Vs Assistant State Tax Officer (Intelligence) (Kerala High Court)

Kerala High Court directed petitioner to approach Tribunal by filing an appeal u/s. 112 of the CGST/ SGST Act as and when the Tribunal is constituted. Petitioner also directed to pay fine in lieu of confiscation for release of seized gold ornaments.

Facts- The petitioner suffered order under Section 130 of the CGST / SGST Acts on the finding that the goods were being transported without documents and with ulterior intention to evade tax in contravention of the provisions of the CGST / SGST Acts and Rules. The goods which were gold ornaments weighing 331.33 grams were confiscated and the petitioner was given the option to redeem the ornaments on payment of fine in lieu of confiscation. A perusal of order will show that the fine in lieu of confiscation was fixed as Rs.15,59,239/-. The petitioner challenged order before this Court, however, the same was dismissed finding that the petitioner had to avail appellate remedies.

Conclusion- Held that order gives to the petitioner an option of redeeming the confiscated gold of 331.33 grams on payment of fine in lieu of confiscation amounting to Rs.15,59,239/-, the prayer of the petitioner can be granted and the petitioner can be left at liberty to challenge the proceedings in a duly constituted appeal u/s. 112 of the CGST / SGST Acts before the Tribunal, as and when the Tribunal is constituted. Accordingly, this writ petition will stand disposed of directing that on the petitioner remitting the sum of Rs.15,59,239/- being the fine in lieu of confiscation imposed on the petitioner vide order, the gold ornaments weighing 331.33 grams seized shall be released to the petitioner.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

The petitioner suffered Ext.P5 order under Section 130 of the CGST / SGST Acts on the finding that the goods were being transported without documents and with ulterior intention to evade tax in contravention of the provisions of the CGST / SGST Acts and Rules. The goods which were gold ornaments weighing 331.33 grams were confiscated and the petitioner was given the option to redeem the ornaments on payment of fine in lieu of confiscation. A perusal of Ext.P5 order will show that the fine in lieu of confiscation was fixed as Rs.15,59,239/- (Rs.7,32,800/- towards Central Tax and Rs.7,32,800/-towards State Tax). The petitioner challenged Ext.P5 order before this Court by filing W.P(C)No.28057 of 2021, which was however dismissed finding that the petitioner had to avail appellate remedies. A Writ Appeal filed against the judgment in W.P(C)No.28057 of 2021 was also dismissed by a Division Bench of this Court through Ext.P6(a) judgment.

2. The learned counsel appearing for the petitioner would submit that the statutory appeal filed by the petitioner thereafter was also dismissed by Ext.P7 order and the petitioner is unable to file a further appeal under Section 112 of the CGST / SGST Acts on account of the fact that the Tribunal has not so far been constituted. The learned counsel submits that the petitioner will file an appeal against Ext.P5 / Ext.P7 orders before the Tribunal as and when it is constituted and the petitioner may be permitted, in the meanwhile, to redeem the gold on payment of the amount of fine mentioned in Ext.P5 order.

3. Heard the learned Senior Government Pleader also.

4. 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 and noticing that Ext.P5 order gives to the petitioner an option of redeeming the confiscated gold of 331.33 grams on payment of fine in lieu of confiscation amounting to Rs.15,59,239/-, the prayer of the petitioner can be granted and the petitioner can be left at liberty to challenge the proceedings in a duly constituted appeal under Section 112 of the CGST / SGST Acts before the Tribunal, as and when the Tribunal is constituted.

Accordingly, this writ petition will stand disposed of directing that on the petitioner remitting the sum of Rs.15,59,239/- being the fine in lieu of confiscation imposed on the petitioner vide Ext.P5 order, the gold ornaments weighing 331.33 grams seized shall be released to the petitioner. It will be open to the petitioner to challenge Ext.P5 order as confirmed by Ext.P7 order before the Tribunal as and when the Tribunal is constituted. It is made clear that the seized ornaments shall be released to the petitioner immediately on payment of the fine in lieu of confiscation.

The writ petition ordered accordingly.