IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26303 of 2009(G)
1. BIJU ALEX,
... Petitioner
Vs
1. THE COMMERCIAL TAX OFFICER(WORKS
... Respondent
2. THE SALE TAX INSPECTOR, SALES TAX
For Petitioner :SRI.SOJAN JAMES
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :18/09/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.26303 OF 2009
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Dated this the 18th day of September, 2009
J U D G M E N T
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1. Petitioner is aggrieved by detention of an Excavator
transported by him interstate, from the State of Karnataka.
According to the petitioner he is a works contractor having
registration under the provisions of the Kerala Value Added Tax
Act, as evidenced by Ext.P1 certificate. The purchase of the
Excavator was for his own use in execution of a civil contract
work awarded to him by the Rural Development Agency of the
Sate Government. The transport was accompanied with Ext.P3
invoice and Ext.P4 Form 16 Declaration (certificate of
ownership) under the provisions of the KVAT Act. The transport
was intercepted at the check post at Bangara, Manjeswar, and
Ext.P5 notice was issued by the 2nd respondent. The reason for
detention stated in Ext.P5 is that the consignee is not a
registered dealer under the CST Act, and hence he is not entitled
to effect interstate purchase.
2. The reason for detention mentioned in Ext.P5 is not
elaborative. Liability for payment of tax will be attracted only if
the petitioner is bringing the Excavator for re-sale within the
State. In other words the tax liability will be limited only to that
of a works contractor.
W.P.(C).26303/09 2
3. However the question whether there was any attempt
at evasion of payment of tax is a matter which has to be decided
on finalisation of the process of adjudication contemplated u/s 47
of the KVAT Act. Hence I am not expressing any opinion on
merits. But I am of the opinion that release of the goods can be
ordered pending finalisation of the adjudication, on the
petitioner furnishing security, especially in view of the proviso to
section 47(2) of the KVAT Act.
4. Therefore the writ petition is disposed of directing the
2nd respondent to release the goods detained under Ext.P5 along
with the vehicle, on the petitioner furnishing security bond as
provided under the Rules without sureties, to extent of the
amount demanded in Ext.P5. Petitioner shall also furnish an
undertaking in the form of a Bond before the 2nd respondent to
the effect that pending finalisation of the adjudication he will
not in any manner transfer ownership or possession of the
Excavator in question. It is further directed that the competent
authority shall expedite finalisation of the adjudication
proceedings, after affording 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 Excavator.
C.K.ABDUL REHIM, JUDGE.
okb