IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32805 of 2010(A)
1. A&P BUILDERS AND ENGINEERING
... Petitioner
Vs
1. THE INTELLIGENCE INSPECTOR,
... Respondent
For Petitioner :SRI.A.KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :28/10/2010
O R D E R
C.K. ABDUL REHIM, J
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WP(C) NO. 32805 OF 2010
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Dated this the 28th day of October, 2010
JUDGMENT
Petitioner is aggrieved by detention of machineries
(capital equipments) transported from Cochin Port to
their work site at Thiruvananthapuram. The goods in
question are imported by the petitioner at the coastal
port of Cochin. Various documents revealing import of
the goods such as, Bill of Entry, Commercial Invoice etc.
were accompanying with the transport. Further, the
transport was effected on the strength of Departmental
Delivery Note and Form No. 8 F A Declaration.
2. On interception, Ext.P5 notice was issued under
Section 47 (2) of the Kerala Value Added Tax Act, 2003
(KVAT Act). The reasons for detention was mainly on the
ground that, the items under transport are not covered by
the registration certificate of the petitioner, and further
that the description of goods in the delivery note was not
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fully tallying with the items under transport. It is also
mentioned that on verification from the KVATIS it was
revealed that the petitioner is authorised only for local
purchase/inter state purchase/works contract of ‘cement’
alone, and no import of any other items was seen authorised
by the assessing authority.
3. Sri.A.Kumar, learned counsel appearing for the
petitioner contended that there is ample documents to
prove that the goods in transport were imported from
outside the country by the petitioner, and it was transported
only to its work site. It is also evident that the goods are
capital equipments which is to be used in execution of
works undertaken by the petitioner with M/s.
Thiruvananthapuram Road Development Company Ltd. for
the contract which is being executed under the
Infrastructure Development Projects of the Kerala Road
Fund Board. Petitioner also points out a Division Bench
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decision of this Court in ST Rev. No. 88/2010, wherein it is
held that all the documents required under the statute
could not be insisted in a case of transport of capital
equipments. Therefore the petitioner seeks direction for
release of the goods.
4. Learned Government Pleader appearing on behalf
of the respondents contended that there was no documents
accompanied with the transport evidencing that the
equipments are for own use of the petitioner. It is further
contended that the petitioner was not authorised to import
goods and there was no intimation submitted to the
assessing authority with respect to purchase of any capital
equipments.
5. I am not proposing to enter upon any findings
with respect to the disputed question as to whether there
was any attempt in evasion of payment of tax. It is a matter
to be decided on finalising the enquiry. But pending
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disposal of the enquiry proceedings, I am of the opinion
that the goods can be released to the petitioner on
furnishing proper security. It is noticed that the petitioner
is a registered dealer who is regularly paying tax.
6. Under the above circumstances, the Writ Petition
is disposed of directing the first respondent to release the
goods along with the vehicle detained under Ext.P5 notice,
on the petitioner furnishing Security Bond in the form
prescribed under the KVAT Rules, without sureties.
7. It is made clear that the respondents will be at
liberty to issue proceedings to the awarder of the work in
question, stated to have been undertaken by the petitioner,
restraining them from payment of an amount equivalent to
the security deposit demanded under Ext.P5, out of the final
bill of the contract on completion of the work, pending
disposal of the enquiry proceedings under Section 47, if it
thinks necessary to impose such a restriction.
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8. The competent authority under Section 47 is
directed to finalise the enquiry after affording an
opportunity of hearing to the petitioner at the earliest
possible, at any rate within a period of six weeks from the
date of release of the goods.
C.K. ABDUL REHIM
JUDGE
dnc