M/s Age Industries (P) Ltd. Vs The ASST. State Tax Officer (Kerala High Court)
Petitioner is a private limited company engaged in the manufacture and sale of surgical gloves. They are registered under the Central Goods and Services Tax Act (the CGST Act) and the Kerala State Goods and Services Tax Act (the SGST Act).
2. It is stated by the petitioner that one consignment of surgical gloves sent by the petitioner to three parties for quality appraisal on job work basis against Ext.P1 series delivery chalans has been detained by the respondent, in exercise of the power under section 129 of the SGST Act. Ext.P2 is the notice issued by the respondent to the petitioner in this connection as provided for under Section 129 of the SGST Act. It is stated in Ext.P2 notice that the goods are detained for two reasons. The first reason stated in Ext.P2 notice is that since the goods were being transported on delivery chalan, in the light of the provision contained in sub-rule (3) Rule 55 of the Kerala State Goods and Services Tax Rules (the State SGST Rules), the petitioner should have uploaded a declaration in accordance with Rule 138(2) of the State SGST Rules before transporting the goods. The second reason stated in Ext.P2 notice is that goods transported by the petitioner are intended to be supplied to an unregistered firm and that therefore, tax evasion is suspected. The detention of the goods in terms of Ext.P2 notice is under challenge in the writ petition.
3. Heard learned counsel for the petitioner as also the learned Government Pleader.
4. In W.P.(C) No.196 of 2018, this Court held that the power of detention contemplated under Section 129 of the SGST Act can be exercised only in respect of goods which are liable to be confiscated under Section 130 of the SGST Act; that there is no taxable supply when goods are transported on delivery chalans so long as the authenticity of the delivery chalan is not doubted and that therefore, such goods cannot be detained merely for infraction of Rule 138(2) of the State SGST Rules. In the light of the said judgement, the first reason on which the goods are detained, viz, that the goods were not accompanied by the document provided for under Rule 138(2) State SGST Rules is unsustainable.
5. As noted above, the second reason mentioned in Ext.P2 notice is that goods were intended to be supplied to an unregistered firm. The specific case of the petitioner is that the consignment was intended to be supplied to three parties for quality appraisal on job work basis. Such transactions are not prohibited. Such goods in terms of the provisions contained in the CGST and SGST Act are to be transported on delivery chalans. The question whether the person to whom such goods are supplied has registration is irrelevant in the context of the statutes. The learned Government Pleader, in the circumstances, did not attempt to support the impugned detention on the said reason. Instead, the learned Government Pleader attempted to support the impugned detention on the reason that the delivery chalan that accompanied the goods was not one prepared in accordance with the provisions contained in the State SGST Rules. As noted above. Ext.P2 is a notice issued by the respondent to the petitioner as provided for under Section 129 of the SGST Act. Ext.P2 contains only two reasons. When Ext.P2 notice contained only two reasons, the respondent cannot be heard to support the detention on a reason not mentioned in the said notice. Had the defect highlighted by the learned Government Pleader been a reason for detaining the goods, the same would have certainly found a place in Ext.P2 notice. The defect, if any, of the delivery chalan being not a reason mentioned in Ext.P2 notice, the same cannot be permitted to be urged to sustain the detention, for, the same is not the reason for the detention. It is all the more so, as this Court is not examining the question as to whether the delivery chalan in question is one issued in accordance with the State SGST Rules.
6. In the result, the writ petition is allowed, the impugned detention is held to be illegal and the respondent is directed to release the consignment to the petitioner forthwith.
It is, however, made clear that this judgment will not preclude the respondent from initiating proceedings against the petitioner for imposition of penalty contemplated under the SGST Act for non-compliance of the provisions contained in the State SGST Rules, if such imposition is provided under law.