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Case Law Details

Case Name : Kamalesh Sen Vs Assistant State Tax Officer (Kerala High Court)
Appeal Number : WP(C) No. 29966 of 2021
Date of Judgement/Order : 07/01/2022
Related Assessment Year :

Kamalesh Sen Vs Assistant State Tax Officer (Kerala High Court)

It is noticed from Ext.P8, that the respondent has given a reason for initiating proceedings under Section 130. The correctness or otherwise of the said reason is not a matter which can be considered by this Court under Article 226 of the Constitution of India, especially in the light of the fact that, petitioner was not in possession of any documents contemplated under law. Whether the transport of gold was with an intention to evade tax or not is a matter which requires appreciation of disputed facts and hence the statutory authority will have to consider the same after appreciating the facts. In view of the above, I am of the opinion that, this is not a fit case for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. Hence there is no merit in this writ petition.

Since it is submitted that the petitioner was heard sometime in the past in order to render justice to both sides, the respondent shall afford an opportunity of a fresh hearing to the petitioner on 17/1/2022 at 11 am. The petitioner shall treat this judgment as sufficient notice for the hearing and appear before the respondent on the date so fixed and appropriate orders shall be passed thereon, in accordance with law.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

Petitioner challenges the proceedings initiated under Section 129 as well as under Section 130 of the Central Goods and Service Tax Act 2017 (for short the Act).

2. Petitioner claims to be a goldsmith and a native of Rajasthan. While he was travelling through Kerala for taking orders from jewellers, he carried with him certain gold jewellery for display purposes. However, assuming that, he was carrying narcotics or other contraband articles, the Sub-Inspector of Police, Koilandy Police Station, detained the petitioner on 22/11/2021 and on physical search, found the petitioner carrying 250.800gm of gold ornaments.

3. Accordingly, the respondent was intimated, who came and seized the gold ornaments and thereafter, issued Ext.P5 order of detention under Section 129(1) of the CGST Act on 22/11/2021. In the meantime, petitioner submitted a reply to the notice of detention on 26/11/2021. However, while handing over the reply notice to the respondent, a notice for confiscation under GST MOV-10, was issued to the petitioner dated 24/11/2021.

4. The learned counsel for the petitioner Sri.R.Ramdas vehemently contended that, there is absolutely no material to assume any intention to evade the tax as contemplated under Section130 and hence the proceedings so initiated, fails to satisfy the ingredients of Section 130 of the CGST Act. He further submitted that petitioner is desirous of obtaining release of the goods on payment of the applicable tax and penalty contemplated under Section 129(1)of the CGST Act.

5. The learned Government Pleader Smt.M.M.Jasmine on the other hand contended that, petitioner was not carrying any documents to prove the veracity of the transport of gold ornaments for display purposes and the respondent bona fide felt that, there was an intention to evade tax. It was further submitted that the jurisdiction under Article 226 of the Constitution of India cannot be invoked when there are disputed questions of fact and hence the remedy of the petitioner is to obtain an order of adjudication as contemplated under Section 130. The learned Government Pleader further submitted that petitioner was in fact heard twice by the respondent and that orders are not being issued due to the pendency of this writ petition.

6. I have considered the rival contentions.

7. It is noticed from Ext.P8, that the respondent has given a reason for initiating proceedings under Section 130. The correctness or otherwise of the said reason is not a matter which can be considered by this Court under Article 226 of the Constitution of India, especially in the light of the fact that, petitioner was not in possession of any documents contemplated under law. Whether the transport of gold was with an intention to evade tax or not is a matter which requires appreciation of disputed facts and hence the statutory authority will have to consider the same after appreciating the facts. In view of the above, I am of the opinion that, this is not a fit case for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. Hence there is no merit in this writ petition.

8. Since it is submitted that the petitioner was heard sometime in the past in order to render justice to both sides, the respondent shall afford an opportunity of a fresh hearing to the petitioner on 17/1/2022 at 11 am. The petitioner shall treat this judgment as sufficient notice for the hearing and appear before the respondent on the date so fixed and appropriate orders shall be passed thereon, in accordance with law.

The writ petition is dismissed with the above observations.

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