IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941 WP(C).No.807 OF 2020(A) PETITIONER: SHAJAHAN A.M. S/O. MUHAMMED A.M., AKKADAYIL HOUSE, MUVATTUPUZHA-686 673 BY ADV. SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENTS: 1 ASSISTANT STATE TAX OFFICER MOBILE SQUAD-II, STATE GST DEPARTMENT, KOLLAM AT KOTTARAKKARA-691 506 2 STATE TAX OFFICER, SQUAD-I, STATE GST DEPARTMENT, KOLLAM AT KOTTARAKKARA-691 506 3 ASSISTANT COMMISSIONER (INT) STATE GST DEPARTMENT, KOLLAM -691 002 SMT.M.M.JASMINE, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2020, ALONG WITH WP(C).NO.1289/2020, COURT ON SAME DAY DELIVERED FOLLOWING: IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941 WP(C).No.1289 OF 2020(I) PETITIONER: SHAJAHAN A.M., S/O. MUHAMMED A.M., AKKADAYIL HOUSE, MUVATTUPUZHA-686673. BY ADVS. SRI.P.N.DAMODARAN NAMBOODIRI SHRI. HRITHWIK D. NAMBOOTHIRI RESPONDENTS: 1 ASSISTANT STATE TAX OFFICER, MOBILE SQUAD NO.1, STATE GST DEPARTMENT, KOLLAM-691002. 2 STATE TAX OFFICER, SQUAD NO.1, STATE GST DEPARTMENT, KOLLAM-691002. 3 ASSISTANT COMMISSIONER (INT), STATE GST DEPARTMENT, KOLLAM-691002. SMT.M.M.JASMINE, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2020, ALONG WITH WP(C).NO.807/2020, COURT ON SAME DAY DELIVERED FOLLOWING: ALEXANDER THOMAS, J. ----------------------------------------- W.P.(C) Nos. 807 & 1289 of 2020 ----------------------------------------- Dated this 29th day of January, 2020 JUDGMENT As petitioner in these two cases is same person, and as issues raised in these cases are also similar, these cases are disposed of on basis of this common judgment. prayers in WP(C).No.807/2020 are as follows: i. To issue writ in nature of certiorari or any other appropriate writ or order quashing Exhibit P1 & P1A and Ext.P2 & P2A notices issued by first respondent herein, by demanding to remit disputed CGST, SGST and Penalty from petitioner as illegal, arbitrary and without any jurisdiction, or pass such further or other orders as may deem fit and proper in circumstances of this case, and render justice; ii. To issue writ in nature of mandamus or any other appropriate writ, direction or order directing 1 st respondent to release vehicle with goods without insisting for payment of amount demanded therein; iii. To pass such other orders as this Hon'ble Court may deem justified in facts and circumstances of case; AND iv. To award cost of this proceedings to petitioner. prayers in WP(C).No.1289/2020 are as follows: i. To issue writ in nature of certiorari or any other appropriate writ or order quashing Exhibit P1 and Ext.P2 notices issued by first respondent herein, by demanding to remit disputed CGST, SGST and Penalty from petitioner as illegal, arbitrary and without any jurisdiction, or pass such further or other orders as may deem fit and proper in circumstances of this case, and render justice; ii. To issue writ in nature of mandamus or any other appropriate writ, direction or order directing 1 st respondent to W.P.(C) Nos. 807 & 1289 of 2020 ..4.. release vehicle with goods without insisting for payment of amount demanded therein; iii. To pass such other orders as this Hon'ble Court may deem justified in facts and circumstances of case; AND iv. To award cost of this proceedings to petitioner. 2. Heard Sri.P.N.Damodaran Namboodiri, learned counsel appearing for petitioner in these two cases and Smt.M.M.Jasmine, learned Government Pleader appearing for respondents. 3. After having heard both sides and after careful evaluation of facts and circumstances of case, it is ordered that detained goods and vehicles involved in these two cases as per impugned proceedings shall be immediately released to petitioner on his furnishing Bank Guarantee for respective values shown in impugned Exts.P-2 & P-2(a) in WP(C).No.807/2020 and in Ext.P-1 in WP(C).No.1289/2020. 4. However, 2nd respondent adjudication officer will ensure that further proceedings pursuant thereto, be adjudicated and finalised after affording reasonable opportunity of being heard to petitioner without much delay, preferably W.P.(C) Nos. 807 & 1289 of 2020 ..5.. within period of 3 to 4 weeks from date of production of certified copy of this judgment. While doing so, 2nd respondent will specifically consider and advert to plea made by petitioner that, abovesaid transaction is effected by 1st transaction entered into by petitioner, and that he was not having thorough knowledge relating to fine tuned aspects emanated from Goods and Service Taxes Act and Rules framed thereunder, and that sympathetic consideration may be made in this case. 5. Further, 2nd respondent should also consider specific plea made by petitioner that, even otherwise maximum tax that could be imposed in case like this could be 12% and not at rate of 28% as has been ordered in impugned proceedings, in view of prescriptions made in Ext.P-5 notification dated 25.1.2018 in WP(C).No.807/2020, and Ext.P-6 notification dated 25.1.2018 in WP(C).No.1289/2020, and in that regard petitioner would raise specific plea that, it is admitted by none other than 1st respondent in impugned W.P.(C) Nos. 807 & 1289 of 2020 ..6.. proceedings that detained motor cycles are used vehicles and not brand new vehicles, as can be seen from Exts.P-2 & P-2(a) in WP(C).No.807/2020 (given on pages 15 to 18 thereof) and also in Ext.P-1 in WP(C).No.1289/2020 (given on pages 9 & 10 thereof) and therefore tax imposable could be only at rate of 12% as per above notification dated 25.1.2018, etc. 6. said plea of petitioner should be duly adverted to and considered by 2nd respondent while passing orders for finalization of abovesaid proceedings. With these observations and directions, both above Writ Petition (Civil) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C) Nos. 807 & 1289 of 2020 ..7.. APPENDIX OF WP(C).NO. 807/2020 PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF NOTICE NO.SCN 55/MS.II/2019- 2020 DATED 07/01/2020 ISSUED IN FORM GST MOV-07 U/S.129(3) OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT- P1A TRUE COPY OF NOTICE NO.SCN 56/MS.II/19-20 DATED 07/01/2020 ISSUED IN FORM GST MOV-07 U/S.129(3) OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT P2 TRUE COPY OF NOTICE NO.MOV-07/55/1920/VTR II DATED 07/01/2020 ISSUED IN FORM GST MOV-07 U/S.129(3) OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT-P2A TRUE COPY OF NOTICE NO.MOV-07/56/1920/VTR II DATED 07/01/2020 ISSUED IN FORM GST MOV-07 U/S.129(3) OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT P3 TRUE COPY OF NOTICE NOSCN 55/MS.II/2019-2020 DATED 07/01/2020 IN FORM GST MOV-02 OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT-P3A TRUE COPY OF NOTICE NO.SCN 56/19-10/VTR II DATED 07/01/2020 IN FORM GST MOV-07OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT P4 TRUE COPY OF NOTICE NO.MSCN 55/M.S.II/209- 2020 DATED 07/01/2020 IN FORM GST MOV-06 U/S.129(1) OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT-P4A TRUE COPY OF NOTICE NO.MSCN 56/M.S.II/209- 2020 DATED 07/01/2020 IN FORM GST MOV-06 U/S.129(1) OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT P5 TRUE COPY OF NOTIFICATION NO.8/2018-CENTRAL TAX (RATE ) DATED 25.01.2018 W.P.(C) Nos. 807 & 1289 of 2020 ..8.. APPENDIX OF WP(C).NO.1289/2020 PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF NOTICE NO.MB01/SCN 97/19-20 DATED 06/01/2020 ISSUED IN FORM GST MOV-07 U/S. 129(3) OF GST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT P2 TRUE COPY OF NOTICE NO.MB01/SCN 97/19-20 DATED 06/01/2020 ISSUED IN FORM GST MOV-06 U/S. 129(1) OF CGST/SGST ACT 2017 BY 1ST RESPONDENT TO PETITIONER. EXHIBIT P3 TRUE COPY OF NOTICE NO. MB01/SCN97/2019-20 DATED 06/01/2020 ISSUED IN FORM GST MOV-01 BY 1ST RESPONDENT TO DRIVER OF VEHICLE. EXHIBIT P4 TRUE COPY OF NOTICE NO. MB01/SCN97/2019-20 DATED 06/01/2020 ISSUED IN FORM GST MOV-02 FOR PHYSICAL VERIFICATION BY 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF PHYSICAL VERIFICATION REPORT NO.MB01/SCN97/2019-20 DATED 09/01/2020 ISSUED IN FORM GST MOV-04 BY 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF NOTIFICATION NO.8/2018-CENTRAL TAX (RATE) DATED 25/01/2018. Shajahan A.M. v. Assistant State Tax Officer, Kottarakkara / State Tax Officer, Kottarakkara / Assistant Commissioner (Int) State Gst Department, Kollam