Case Title | Hindustan Steel and Cement Vs State Tax Officers Joint Commissioner of State Tax, Kerala |
Court | Kerala High Court |
Honorable Judges | Justice Gopinath P |
Citation | 2022 (7) GSTPanacea 133 HC kerala W.P.A. 17454 of 2022 |
Judgement Date | 20 – July- 2022 |
Council for Petitioner | R. Jaikrishna Narayani Harikrishnan C.S Arun Shankar Anish P Vivek Bhatt D |
Council for UOI | |
Council for State | Thusara James |
The Kerala High Court bench of Justice Gopinath P has held that filing of an appeal without a demand does not mean that the intention of the legislature was different.
FACTS OF THE CASE
The Goods and Conveyance of petitioner was seized or detained by the respondent. And issued the MOV-9 after depositing the amount under s which are required to get goods released under Section 129(1)(a) of CGST Act,2017.
Further there were no summary order in form DRC-07 was issued to petitioner which is mandatory under section 129(5) read with rule 142 of CGST Act,2017 as per submission of petitioner , and thus petitioner was unable to file and appeal as it required summary order attachment in form DRC-07.
The respondent submitted that after payment under Section 129(1)(a) in form DRC-3, entire proceedings should be treated as having concluded and payment represents the acceptance of the facts that discripencies noted by interepting officer were well found.
It is also submitted by the respondent that as per Rule 142 the situation where the person concerned seeks to continue with the proceedings by opting to provide Bank Guarantee under section 129(1)(c), in which case Section 129(5) do not apply and proceedings cannot be treated as concluded.
The respondent also submitted that unless there is a demand of tax,interest and penalty, there cannot be a proceedings under DRC-07 as per Rule 142 of CGST Rules.
Section 129(1)(c) gives an option to a person suffering from an order of detention or seizure to provide security instead of making payment of tax as provided in sub section 3(a) .
COURT HELD
After reading all the relevant provision of contained Section , it is seen that whether or not a person opts to make payment under Section 129(1)(a) or to provide security under Section 129(1)(c), the responsibility of officer to pass an order under Section 129(3) and to upload the summary order in Form DRC-07 continues.
The provision of section 129(5) of CGST Act pointed out by respondent, this can be only reasonable interpretation that can be placed on the provisions reffered above, any other interpretation would clearly violate the article 265 of Constitution of India.
So the writ is directed that concerned officers will do the needful within one month from this order, and the state tax authority shall issue a special circular of above findings in this behalf.
ANALYSIS OF THE JUDGEMENT
As Taxpayer has fulfilled all the conditions relevant to the GST Laws , the provision of any section cannot be applied just by merely explaining what is written, a natural and reasonable interpretation should be expressed before levying any penalty.
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