2018 (7) TMI 758 – KERALA HIGH COURT – 2018 (17) G. S. T. L. 18 (Ker.) – Payment of tax and penalty for release of detained goods – the 1st respondent insisted that the petitioner ought to have paid the amount shown in Ext.P4 either in cash or through demand draft to the 1st respondent – Held that:- The Court declares that the 1st respondent's insistence that the petitioner should pay the amount either in cash or through demand draft cannot be sustained. As is further evident from Ext.P7, the petitioner is a dealer registered under the CGST – the petitioner's paying the penalty under Ext.P5 receipt to the portal of GST is eminently sustainable.
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The 1st respondent authority is directed release the goods, after receiving Ext.P5 receipt – petition disposed off. – W.P.(C). No. 21988 of 2018 (W) Dated:- 6-7-2018 – MR. DAMA SESHADRI NAIDU, J. For The Petitioner : Sri.Deepu Thankan, Smt.Nimmy Johnson, Smt.Ummul Fida And Sri.A.Abdul Nabeel For The Respondent : Sri. Shamsudheen V.K. JUD
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ax and penalty as demanded under Ext.P4 show cause notice. Therefore, it invoked Section 49 and paid the tax and penalty in the portal of GST maintained by the Central Government. According to him, Section 129 itself does not indicate the manner of payment. Under these circumstances, the residuary provision of Section 49 ought to be taken recourse to, which the petitioner did. Besides, he has also drawn my attention to the Circular No.41/15/2018-GST dated 13th April 2018, issued by the Government of India. 4. Under these circumstances, the learned counsel contends that the 1st respondent's stand cannot be sustained and there shall be a judicial direction for the release of the detained goods. 5. The learned Government Pleader, on the other hand, has submitted that Section 17(5) of the Act is categoric that any payment paid under Section 129 will not entail input tax credit. According to him, it ought to have been under Section 130. Therefore, in the end, he has contended that as th
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scribed, shall be credited to the electronic cash ledger of such person to be maintained in such manner as may be prescribed. 49 (3) The amount available in the electronic cash ledger may be used for making any payment towards tax, interest, penalty, fees or any other amount payable under the provisions of this Act or the rules made thereunder in such manner and subject to such conditions and within such time as may be prescribed. 8. As the above extract demonstrates, the amount available in the electronic cash ledger may be used for making any payment towards tax, interest, penalty, fees and so on. If we further examine the circular, which concerns the interception of conveyances, inspection of goods in movement, their detention, release, and confiscation. Of that circular, Clause 2(h) reads: Where the owner of the goods or any person authorized by him comes forward to make the payment of tax and penalty as applicable under clause (a) of sub-section (1) of section 129 of the CGST Act,
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earned Government Pleader has strenuously contended that Section 17(5) comes in the way. Therefore, I may examine that provision, too. Section 17(5)(i) reads as follows: 17(5) Notwithstanding anything contained in subsection (1) of section 16 and sub-section (1) of section 18, input tax credit shall not be available in respect of the following, namely:- (i) any tax paid in accordance with the provisions of sections 74, 129 and 130. 11. This provision clarifies that if a dealer pays tax under Section 74, 129 or 130, that dealer may not be entitled to input tax credit. It does not go beyond. 12. At this juncture, the petitioner's counsel submitted that once the petitioner has paid the amount through the electronic portal, it entirely lies in its discretion how it should use it. If at all, in terms of Section 17(5), it is not entitled to input credit, it can as well use the amounts lying to its credit for other purposes. To the extent it has paid the amount, the dealer stands discharg
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