2018 Taxo.online 384

WP(C).No. 32237 of 2018 dated 04.10.2018

NOUSHAD ALLAKKAT

THE STATE TAX OFFICER (WC)

2018

GST

Central Goods & Services Tax Act, 2017

129

CGST Rules 2017

140

Dama Seshadri Naidu, Justice

In favour of assessee

High Court

Kerala

Represented by: –

Petitioner: – Sri.Harisankar V. Menon, Smt.K.Krishna & Smt.Meera V.Menon

Respondent: – Dr. Thushara James & Sri. S Easwaran

Order: –

The petitioner, a dealer in timber, faces proceedings under the Goods and Services Tax Act. Purchased in Tamil Nadu and being brought to Kerala, the timber was detained under Section 129 of the Act, for ‘the supplier’s failure to collect IGST’. The petitioner has got the goods released on his furnishing the bank guarantee, though.

2. At any rate, faced with adverse orders, the petitioner wants to file a statutory appeal. But before it can prosecute the appeal, the 4^th respondent threatens, the petitioner apprehends, to invoke the bank guarantee. So it has filed this writ petition.
3. According to the petitioner’s counsel, the appellate forum itself was very recently created, and still the procedural mechanism has not yet been fully put in place. In the meanwhile, if the respondents invoke the bank guarantee, the petitioner’s right to statutory remedy becomes illusory.
4. The petitioner also seeks another relief: “To declare that Rule 140(2) of the CGST Rules 2017 is not to apply as against detention of the goods under Section 129 of the CGST Act.”
5. The petitioner’s counsel has brought to my notice a judgment of this Court in Commercial Tax Officer v. Madhu[1] . This Court has held that the dealer ought to produce the goods at the time of adjudication. Here, the petitioner has not produced; so it suffered penalty. As the judgment emanates from a Division Bench, it is not in my remit to re-examine the precedential proposition. At the same time, it is entirely open for the petitoner to distinguish the judgment and assert its case before the appellate forum.
6. The learned Government Pleader, on the other hand, has submitted that the petitioner has an efficacious alternative remedy and, so, it can approach the appellate authority.
7. Heard Sri Harisankar V. Menon, the learned counsel for the petitioner, and Smt.Jasmine, the learned Government Pleader appearing for the respondents.
8. Indeed, in terms of Section 107 of the Act, read with Rule 108 of the Goods and Services Tax Rules; to appeal, the petitioner has three months’ time from the date of Ext.P7 impugned order. But it may be inequitable for the respondent authorities to invoke the bank guarantee before the limitation to appeal ends.
9. I, therefore, dispose of this Writ Petition holding that the respondent will not invoke the bank guarantee for three months. In the meanwhile, the petitioner may make all efforts before the appellate authority to get an interim protection, pending appeal.

Thus, the Writ Petition stands disposed of.

[1] (2017) 105 VST 244 (Kerala)