2018 Taxo.online 485

WP(C).No. 28414 of 2018 dated 21.11.2018

T.M. ABOOBUKKAR

ASSISTANT STATE TAX OFFICER

2018

GST

Central Goods & Services Tax Act, 2017

126, 129 and130

CGST Rules 2017

140

Dama Seshadri Naidu, Justice

Partly in favour of assessee

High Court

Kerala

Represented by: –

Petitioner: – Sri.K.M.Firoz & Smt.M.Shajna

Respondent: – Dr.Thushara James & Sri. Jaisankar V Menon

Order: –

The petitioners, dealers in polypropylene mats, sent goods to Kerala for flood relief activities. The vehicle and the goods were detained by the respondent authorities alleging misclassification in tax rate. Aggrieved, the petitioners filed this writ petition.

2. In the writ petition, the petitioner sought the following reliefs:

“(i)To call for the records leading to Exhibit P4 and P4(a) issued by the 1^st respondent and to set aside the same by issuing a writ of certiorari or any other appropriate writ direction or order.

(ii) To direct the 1^st respondent to release the goods and vehicle covered by Exhibit P4 and P4(a) issued by the 1^st respondent unconditionally after retaining a sample of the goods detained by issuing a writ of mandamus or any other appropriate writ order or direction.

(iii) To declare that Sections 129 and 130 of Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 and related provisions the Rules made relating to that are unreasonable, arbitrary, illegal and unconstitutional being violative of Articles 14 and 265 of the Constitution of India.

(iv) To declare that Rule 138 of Kerala Goods and Service Tax Rules, 2017 and Central Goods and Service Tax Rules, 2017 are ultra vires Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 and unconstitutional.

(v) To declare that Section 126(6) of the KSGST Act as well as CGST Act insofar as it overlooks the relevant circumstances and factors is arbitrary, unreasonable and unconstitutional.

(vi) To declare that Rule 140 of the Kerala Goods and Service Tax Rules, 2017 and Central Goods and Service Tax Rules, 2017 and Form GST INS-04 prescribed thereunder are unconstitutional, illegal and ultra vires the Kerala Goods and Service Tax Ordinance, 2017, Kerala Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017.

(vii) To declare that Rule 140 of the Kerala Goods and Service Tax Rules, 2017 issued under Kerala Goods and Service Tax Ordinance, 2017, is not enforceable after the enactment of Kerala Goods and Service Tax Act, 2017 after the lapse of the Kerala Goods and Service Tax Ordinance, 2017.

(viii) To issue a direction to the respondents not to implement or not to insist on Rule 140 of the Kerala Goods and Service Tax Rules, 2017 and Central Goods and Service Tax Rules, 2017 and Form GST INS-04 prescribed there under and to keep in abeyance of the same by issuing a writ of mandamus or any other appropriate writ, direction or order.”

3. The learned Division Bench of this Court in Renji Lal Damodaran Vs. State Tax Officer[1] has dealt with an identical issue.
4. Applying the ratio of that judgment, I direct the respondent authorities to release the petitioners’ goods and vehicle on their “furnishing Bank Guarantee for tax and penalty found due and a bond for the value of goods in the form as prescribed under Rule 140(1) of the CGST Rules”.

With the above direction I dispose of the writ petition.

[1] Judgment dated 6.8.18 in W.A.No.1640/2018