IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29207 of 2009(U)
1. BHARTI AIRTEL
... 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 :16/10/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.29207 OF 2009
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Dated this the 16th day of October, 2009
J U D G M E N T
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1. Petitioner is aggrieved by detention of transport of
telecommunication equipments, which was intercepted by the
respondent on issuing Ext.P2 notice under Section 47(2) of the
Kerala Value Added Tax Act, 2003 (KVAT Act). The petitioner is
a company incorporated which is engaged in telecommunication
service having approval from the Department of
Telecommunications, Government of India. The petitioner is
setting up towers in various places within the State and for
erection of the towers, various equipments are being transported
to such different sites. According to the petitioner if the
equipments are not found to be in compliance with the technical
specifications required, at times they are being returned. The
petitioner is having a warehouse at Aluva and such unused
equipments are being transported from various sites to the
warehouse. The transport in question which is intercepted on
3.10.09 contained goods so transported from various places in
Thiruvalla, Pathanamthitta and Kollam Districts. For the above
said transport the petitioner had prepared delivery note from its
W.P.(C).29207/09-U 2
Ernakulam office and the vehicle number noted therein is KL-
07/G-4020. But according to the petitioner there occurred a
break down of the vehicle on 2.10.09 and the materials were
shifted to another vehicle bearing Regn:No:KL-04/H-57. It is
during the onward transport of the materials in the new vehicle,
the respondent had intercepted the transport.
2. On a perusal of Ext.P2 notice the reason for detention
of the transport is stated as;
(1) The goods vehicle intercepted and checked at Podiyadi on
3.10.09 at 7.35 hrs. The goods transported from Thiruvalla
to Ernakulam. The goods transported only on the strength
of Departmental Delivery Note No:1442419 dt.2.10.09.
On verification of the dept. Delivery note it is found that
the date of issue of the delivery note is seen 2.10.09. But
the same is signed on 1.10.09.
(2) The vehicle number mentioned in Dept. Delivery note is
seen KL 07 G 4020. But the goods loaded and transported
in the vehicle No:KL 04 H 57. Hence there is very chance
to transport another load by using the vehicle No.KL 07 G
4020 and the same document previously. Hence the
genuineness of documents produced bonafide of the
transport of goods and thereby an attempt of evasion of tax
is suspected.
Subsequent to interception the petitioner submitted Ext.P3
explanation. The facts and details regarding the transport,
including the circumstances under which it was shifted to
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another vehicle was explained in detail. In order to prove the
history regarding break down of the vehicle the petitioner had
also produced certain documents. But the respondent had
issued further notice Ext.P6, wherein it is alleged that the
vehicle at the place of interception was seen going on the
opposite side of the route as suggested by the petitioner. It is
further stated that the defects in the documents accompanying
transport, raised suspicion that subsequent transport is made
using one and the same documents with deliberate intention.
Therefore the respondent insisted for payment of security
deposit as demanded in Ext.P2.
3. Heard learned counsel for the petitioner and
Government Pleader appearing for the respondent. According to
the petitioner the transport was genuine and there was
absolutely no attempt at evasion of payment of any tax. On the
other hand the Government Pleader contended that from the
facts and circumstances of the case as well as from the details
evident from the documents accompanied the transport, evasion
of payment of tax can be suspected.
4. Having considered rival contentions, I am of the
opinion that the question as to whether there was any attempt at
evasion of payment of tax is a matter which is to be decided on
finalisation of the adjudication proceedings. Regarding release
W.P.(C).29207/09-U 4
of the goods pending finalisation of such adjudication, the
petitioner shall be insisted to furnish proper security.
5. Under the above circumstances the writ petition is
disposed of directing the respondent to release the goods
detained under Ext.P2 and P6 along with the vehicle, on
condition of the petitioner furnishing Bank guarantee for 50% of
the amount demanded under Ext.P2 and also on furnishing
security bond without sureties in the format provided under the
KVAT Rules for the balance 50%.
6. The competent authority under Section 47(5) and (6)
of the KVAT Act is directed to expedite the adjudication
proceedings and to finalise the same after affording an
opportunity of hearing to the petitioner as early as possible, at
any rate within a period of one month from the date of release of
the goods.
C.K.ABDUL REHIM, JUDGE.
okb