2019 Taxo.online 397
W.A. No. 1574 of 2019
M/s Forus Motors
State Tax Officer and Ors
2019
GST
Central Goods and Services Tax Act 2017
129
CGST Rules 2017
138
C.K.ABDUL REHIM and R.NARAYANA PISHARADI
In favour of revenue
High Court
Kerala
REPRESENTED BY: –
PETITIONER: – HARISANKAR V. MENON AND MEERA V.MENON AND K.KRISHNA
RESPONDENT: – SRI. MOHAMMED RAFIQ
Order: –
C.K.ABDUL REHIM, J.
The appellant is the petitioner in the writ petition, W.P. (C)No.16894 of 2019. The writ petition was dismissed by leaving liberty to the appellant to approach the appellate authority. This appeal is filed on raising contention that the subject matter involves a legal question which need to have decided by this Court, which the appellate authority may not be in a position to adjudicate upon.
- Challenge in the writ petition was against Ext.P6 order passed by the 2nd respondent, under Section 129(3) of the Central Goods and Services Tax Act, 2017. On an earlier occasion, the interception of the movement of the goods transported and the consequential issuance of the detention notice, were challenged in a writ petition filed before this Court. In Ext.P5 order passed by a learned Judge of this Court, the respondents were directed to release the vehicle (goods), subject to condition of the appellant filing an undertaking that the vehicle will be produced as and when required by the respondents and that no third party interest would be created upon the vehicle. Thereafter, the 2nd respondent passed Ext.P6 order imposing tax and penalty under sub-section (3) of Section 129. Challenge against the said order was declined through the judgment impugned, discernibly because of the fact that an effective alternative remedy is available against the said order.
- The detention was on the basis of an alleged irregularity that the appellant had failed to generate the e- way bill, as required under Rule 138 of the Central Goods and Services Tax Contention raised is that, generation of e-way bill was not required with respect to the transport in question, in view of sub-rule (14)(b) of Rule 138. It was argued that the goods in question was transported not by means of a motorised conveyance. The 2nd respondent had considered this issue and found that, generation of e-way bill was mandatory, because the goods transported was a new vehicle (Autorickshaw) transported from the principal place of business of the appellant to its branch by specifically raising a ‘delivery note’. The consignment was by way of “Branch Transfer” (stock transfer). Further it was found that the new vehicle which was transported had carried with it a temporary registration number and that the appellant could have used the said number for filing details while generating the e-way bill.
- Learned counsel for the appellant contended that, the specific question raised was not answered by the 2nd respondent while issuing the impugned Further, he had drawn our attention to an observation made by the learned single Judge while issuing Ext.P5 order, that the ground on which the detention was effected is prima facie not sustainable. But we are of the considered opinion that, such an observation cannot be taken as a finding, which will bind upon the respondents in deciding the issue.
- The only question to be considered is whether the relegation made by the learned single Judge to avail the alternative remedy, was justified or not. Contention of the appellant is that the appellate authority may not be able to look into the grounds raised, being 2a question of law to be We cannot accept such a contention because the appellate authority can very well decide as to whether there existed any statutory obligation on the part of the appellant in generating the e-way bill, while transporting the goods in question. Therefore, we are of the view that the liberty reserved by the learned single Judge for availing the statutory remedy, is not in any way illegal, erroneous or improper.
Consequently, the writ appeal fails and the same is hereby dismissed.
