Case Law Details
Pragati Gold Private Limited Vs Value Added Tax Appellate Tribunal (Kerala High Court)
Kerala High Court held that writ petition is misconceived and non-maintainable as petitioner didn’t co-operate for concluding the proceedings by the Tribunal on remand.
Facts- One of petitioner’s employee Mr. Krishnakumar Choudhari was apprehended outside the Cochin International Airport on his arrival from Mumbai on 04.05.2016 with possession of 796 pieces of different gold ornaments weighing 12700.960 grams valued at Rs.3 crores. As Mr. Krishnakumar Choudhari was not carrying any document as prescribed under the Kerala Value Added Tax Act for the purpose of transporting the said quantity of gold ornaments and he was not a registered dealer under the KVAT Act, notice u/s. 17A was issued to him demanding security deposit of Rs.40,00,000/- and tax amounting to Rs.20,00,000/- for release of the ornaments. Pursuant to the representation made by Mr. Krishnakumar Choudhari, the value was refixed and fresh notice was issued to him demanding him deposit of Rs.30,00,000/- and tax amounting to Rs.15,00,000/-. Mr. Krishnakumar Choudhari remitted the amount and the gold ornaments seized from him on 04.05.2016 were released to him.
When an adjudication thereafter followed on the issue whether a penalty could be imposed on the petitioner in terms of Section 47 (6) of the KVAT Act. The Deputy Commissioner (Appeals) vide order dated 20.11.2017 upheld the penalty proposed by the Intelligence Officer, the petitioner preferred an appeal before the Appellate Tribunal. The Tribunal dismissed the appeal and the said order passed by the Tribunal was challenged by the petitioner in OT (Rev.) No.62 of 2019.
The Division Bench set aside the order passed by the Tribunal and remitted the matter back for fresh adjudication in the light of the observations made in the Order dated 11.07.2023 passed in OT Revision (VAT) No.62/2019. The petitioner was permitted to raise all the contentions to substantiate his claim on merits regarding imposition of the penalty. Despite the said direction and time frame prescribed by the Division Bench, the petitioner did not corporate for concluding the proceedings by the Tribunal on remand. The petitioner thereafter approached the Division Bench for extension of time. This Court vide Order dated 13.10.2023, two weeks further period allowed for conclusion of the proceedings by the Tribunal. However, the petitioner again in this writ petition has sought for extension of time.
Conclusion- Held that this Court cannot modify the Order passed by the Division Bench. Accordingly, this writ petition is misconceived and non-maintainable and hence the same is hereby dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
1. The present writ petition has been filed under Article 226 of the Constitution of India by the petitioner/dealer under the Kerala Value Added Tax for the following reliefs;
i) issue a writ of Mandamus, or other appropriate writ, order or direction, directing the Respondent/Tribunal to allow Ext.P4 application for re-opening Evidence and issue fresh summons to the witnesses.
ii) issue a writ of Mandamus, or other appropriate writ, order or direction, directing the Respondent/Tribunal to provide certified copies of orders passed and copies of communication submitted by the CISF Commandant on 11th October, 2023 as sought for by the petitioner.
iii) issue a writ of Mandamus, or other appropriate writ, order or direction, directing the Respondent/Tribunal to provide Video Conferencing Facilities to Counsels at all hearings of the Tribunal.
iv) issue any other appropriate writ, order or direction, as this Hon’ble Court may deem fit and proper to grant in the facts and circumstances of the case.
2. One of petitioner’s employee Mr. Krishnakumar Choudhari was apprehended outside the Cochin International Airport on his arrival from Mumbai on 04.05.2016 with possession of 796 pieces of different gold ornaments weighing 12700.960 grams valued at Rs.3 crores. As Mr. Krishnakumar Choudhari was not carrying any document as prescribed under the Kerala Value Added Tax Act for the purpose of transporting the said quantity of gold ornaments and he was not a registered dealer under the KVAT Act, notice under Section 17A was issued to him demanding security deposit of Rs.40,00,000/- (Rupees Forty lakh only) and tax amounting to Rs.20,00,000/- (Rupees Twenty lakh only) for release of the ornaments. Pursuant to the representation made by Mr. Krishnakumar Choudhari, the value was refixed and fresh notice was issued to him demanding him deposit of Rs.30,00,000/- (Rupees Thirty lakh only) and tax amounting to Rs.15,00,000/- (Rupees Fifty lakh only). Mr. Krishnakumar Choudhari remitted the amount of Rs.45,00,000/- (Rupees Forty five lakh only) by Demand Draft dated 06.05.2016 and the gold ornaments seized from him on 04.05.2016 were released to him.
3. When an adjudication thereafter followed on the issue whether a penalty could be imposed on the petitioner in terms of Section 47 (6) of the KVAT Act. The Deputy Commissioner (Appeals) vide order dated 20.11.2017 upheld the penalty proposed by the Intelligence Officer, the petitioner preferred an appeal before the Appellate Tribunal. The Tribunal dismissed the appeal and the said order passed by the Tribunal was challenged by the petitioner in OT (Rev.) No.62 of 2019.
4. The Division Bench of this Court vide Order in OT (Rev) 62/2019 dated 11.07.2023 set aside the order passed by the Tribunal and remitted the matter back for fresh adjudication in the light of the observations made in the Order dated 11.07.2023 passed in OT Revision (VAT) No.62/2019. The petitioner was permitted to raise all the contentions to substantiate his claim on merits regarding imposition of the penalty. The Tribunal was also directed to pass order within a period of three months from the date of receipt of a copy of the above mentioned Order. Despite the said direction and time frame prescribed by the Division Bench, the petitioner did not corporate for concluding the proceedings by the Tribunal on remand. The petitioner thereafter approached the Division Bench in I.A. No.2 of 2023 for extension of time. This Court vide Order dated 13.10.2023, two weeks further period allowed for conclusion of the proceedings by the Tribunal. However, the petitioner again in this writ petition has sought for extension of time. This Court cannot modify the Order passed by the Division Bench.
5. In the above circumstances, I find this writ petition is misconceived and non-maintainable and hence the same is hereby dismissed.
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