IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 25^TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943 WP(C) NO. 29608 OF 2021 PETITIONER:

M/S.CRYSTAL JEWELLERS TC 38/1222, ABDEEN COMPLEX, VALAYAL CHETTY STREET P.O., CHALAI, THIRUVANANTHAPURAM - 695 036, REPRESENTED BY ITS MANAGING PARTNER SADACK THAMPY MOHAMMED IBRAHIM.

BY ADVS.

S.ANIL KUMAR (TRIVANDRUM)

B.PRABHAKARAN SABU C.J RAHUL A.

APARNA ANIL NANCY PRABHAKAR RESPONDENTS:

1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

2 THE ASST. STATE TAX OFFICER (INT.)

INTELLIGENCE SQUAD NO.V, STATE GOODS AND SERVICES TAX DEPARTMENT, NEW PUBLIC OFFICE BUILDING, C BLOCK, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM.

3 THE STATE TAX OFFICER (INT.)

SQUAD NO.V, STATE GOODS AND SERVICES TAX DEPARTMENT, NEW PUBLIC OFFICE BUILDING, C BLOCK, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.

ADV.JASMINE M.M, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BECHU KURIAN THOMAS, J.

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W.P.(C) No. 29608 of 2021 ----------------------------------------

Dated this the 25th day of January, 2022

JUDGMENT

Petitioner challenges Ext.P17 order issued under Section 130 of the CGST Act, 2017. As per the averments in the writ petition, it is noticed that the gold ornaments belonging to the petitioner was intercepted by the respondents on 14.07.2021 and on verification it was realized that there was no document accompanying the goods. There was neither any delivery challan nor any invoice accompanying the goods and hence proceedings under Section 130 of the CGST Act was invoked.

2. The learned counsel for the petitioner, Adv.

S.Anil Kumar, vehemently contented that this is a clear instance where the respondents acted in excess of their jurisdiction, warranting the invocation of remedy under Article 226 of the Constitution of India. It was submitted that the delivery challan was available in the scooter kept nearby the place where the petitioner's staff was intercepted and if an opportunity was granted to recover the said delivery challan, the same would have proved the veracity of petitioner's contentions.

3. Having heard the arguments of the learned Government Pleader, Adv. M.M. Jasmine, who submitted that all contentions raised by the petitioner are matters of dispute which require an appreciation of facts. The assessing officer had also entered into a finding that there was intent to evade tax in the circumstances. According to the learned Government Pleader this was not a fit case where the remedy under Article 226 is available.

4. I have considered the rival contentions. On a perusal of the impugned order, I find that several factual aspects have been narrated by the officer, while arriving at a conclusion of 'intent to evade tax'. All those aspects are factual matters which require an appreciation of disputed facts. It is the settled position of law that this Court cannot interfere under Article 226 of the Constitution when there are disputed facts, especially in matters of taxation. Petitioner has an alternative and efficacious remedy under Section 107 of the CGST Act to prefer an appeal and therefore, no prejudice would be caused to the petitioner, even.

Accordingly, reserving the liberty of the petitioner to pursue its statutory remedies, this writ petition shall stand dismissed.

Sd/-

BECHU KURIAN THOMAS JUDGE DM APPENDIX OF WP(C) 29608/2021 PETITIONER EXHIBITS EXHIBIT P1 COPY OF REGISTRATION CERTIFICATE.

EXHIBIT P2 COPY OF DELIVERY CHALAN DATED

17/04/2019.

EXHIBIT P2A COPY OF DELIVERY CHALAN DATED

24/07/2019.

EXHIBIT P2B COPY OF DELIVERY CHALAN DATED

10/03/2020.

EXHIBIT P3 COPY OF INVOICE DATED 17/04/2019 ISSUED BY THE HALL MARKING CENTRE IN RESPECT OF EXT.P2.

EXHIBIT P3A COPY OF INVOICE DATED 24/07/2019 ISSUED BY THE HALL MARKING CENTRE IN RESPECT OF EXT.P2A.

EXHIBIT P3B COPY OF INVOICE DATED 10