IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27068 of 2009(C)
1. M/S.RISHAB IMPEX,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. THE COMMERCIAL TAX INSPECTOR,
3. THE COMMERCIAL TAX OFFICER,
For Petitioner :SRI.C.A.SADASIVAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :25/09/2009
O R D E R
C.K.ABDUL RAHIM, J.
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W.P(C). No.27068 of 2009
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Dated this the 25th day of September, 2009
JUDGMENT
The petitioner is a registered dealer under the provisions of
the Kerala Value Added Tax Act, 2003 (for short `the Act’). The
petitioner is aggrieved by detention of the transport of goods
effected from Chennai to Ernakulam, under the provisions of
Section 47(2) of the Act, by issuing Ext.P3 notice. According to the
petitioner, the goods transported are “Satellite Receivers” and
parts which are imported from China through Chennai Port.
Contention is that transport was accompanied by the required
certificate prescribed under the Tamil Nadu VAT Act namely,
K.K.Certificate and the goods were transported in 2 different
consignments arranged through 2 transport agents. While one of
such transports reached the border check post on 22.09.09, the 2nd
respondent intercepted suspecting evasion of payment of tax.
2. It is noticed that the reason for detention mentioned in
Ext.P3 is that, the transport was accompanied only by documents
such as photocopy of K.K Certificate, invoice of the petitioner
raised from China and bill of entry issued by the Customs House,
Chennai. It is further stated that the photocopy of the invoice
W.P(C). No.27068 of 2009 2
accompanied the transport is not a valid document to effect
interstate movement. It is also noticed that the transport was
effected in a different vehicle other than the vehicle mentioned
in the bill of entry. On the basis of the above suspicions,
genuineness of the transport was doubted and security was
demanded under the provisions of Section 47(2) of the Act
alleging attempt at evasion of payment of tax.
3. It is the case of the petitioner that subsequent to the
detention, the petitioner had produced originals of invoices, bill
of entry, and other such documents. But the 2nd respondent was
not prepared to release the goods. Hence the petitioner is
seeking direction for release of the goods without insisting for
payment of security demanded.
4. Heard learned counsel for the petitioner and the
Government Pleader appearing for respondents. The question
whether there was any attempt at evasion of payment of tax is a
matter which need be decided after completing the process of
adjudication as contemplated under Section 47(2) of the Act. It
is not proper for this Court to enter into the merits of the rival
contentions and to arrive at any finding at this stage. However
detention of goods need not be continued till finalisation of such
W.P(C). No.27068 of 2009 3
adjudication, especially in view of the proviso to Section 47(2) of
the Act. Under such circumstances, I am of the opinion that this
Writ Petition can be disposed of directing release of the goods
detained, on the petitioner furnishing proper security.
5. In the result, this Writ Petition is disposed of directing
the 2nd respondent to release the goods mentioned in Ext.P2
notice, on the petitioner paying 50% of the amount of security
demanded under Ext.P3 as `advance tax’ and on furnishing
security bond without sureties as provided under the Rules, for
the balance amount.
6. It is made clear that the payment of 50% of the
security amount as `advance tax’ will not in any way preclude
the authorities from proceeding with the adjudication and from
imposing penalty if it is ultimately found that the petitioner is
liable. The competent authority shall finalise the adjudication
after affording an opportunity of hearing to the petitioner, as
early as possible – at any rate, within a period of two months
from the date of release of goods.
C.K.ABDUL RAHIM
JUDGE
rtr/-