Do not invoke bank guarantee if there is time to file Appeal :KERALA HC

By | August 21, 2018
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(Last Updated On: August 21, 2018)

respondent will not invoke the bank guarantee for three months.

HIGH COURT OF KERALA

Berger Paints India Ltd.

v.

State Tax Officer

DAMA SESHADRI NAIDU, J.

W.P. (C) NO. 23251 OF 2018

JULY  16, 2018

Tomson T. Emmanuel, Adv. for the Petitioner. Smt. Thushara, Govt. Pleader, Rajesh B.Lal K. Joseph and Sreelal N. Warrier, SC for the Respondent.

JUDGMENT

1. The petitioner, a company dealing in paints, faces proceedings under the Central Goods and Services Tax Act. As paint mixing machinery was seized by the authorities, the petitioner provided Ext.P6 bank guarantee as well as Ext.P6(a) security bond, before the 1st respondent, and had the machinery and the transport vehicle released.

2. At any rate, faced with adverse orders, the petitioner contemplates invoking the appellate remedy. Now, the petitioner has filed this Writ Petition ventilating his grievance that before the petitioner could invoke the appellate remedy, the 1st respondent is threatening to invoke the bank guarantee. According to the petitioner’s counsel, the appellate forum itself was very recently created and still the procedural mondalities have yet to be finalised. In the meanwhile, if the respondents invoke the bank guarantee, the petitioner’s right to statutory remedies becomes illusory.

3. The learned Government Pleader, on the other hand, has submitted that the petitioner has an efficacious alternate remedy and, so, can approach the appellate authority.

4. Heard the learned counsel for the petitioner as also the learned Government Pleader.

5. 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.P8 impugned order. The 7th respondent is the appellate authority. Because the petitioner has three months’ time to appeal, it may be inequitable for the authority to invoke the bank guarantee before the petitioner could exhaust its appeal remedywithin the period of limitation, though.

6. 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 7th respondent to get an interim protection, pending appeal — adjudication. Thus the Writ Petition stands disposed of.

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