IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35145 of 2010(P)
1. ELANKOVAN,
... Petitioner
Vs
1. THE SALES TAX INSPECTOR,
... Respondent
2. THE DEPUTY COMMISSIONER (ENQUIRY),
3. THE INSPECTING ASSISTANT COMMISSIONER OF
4. THE SECRETARY TO GOVT.,
For Petitioner :SRI.K.REGHU KOTTAPPURAM
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :24/11/2010
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C)No. 35145 of 2010
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DATED: 24th day of November, 2010
JUDGMENT
Petitioner is a registered dealer under the provisions of the
Central Sales Tax Act (CST Act) and the Value Added Tax Act of
Tamil Nadu State (TNVAT Act). He was also a registered dealer
under the erstwhile Tamil Nadu General Sales Tax Act (TNGST
Act). The petitioner is approaching this Court aggrieved by
Ext.P5 notice and the proceedings initiated under Section 47(2) of
Kerala Value Added Tax Act, issued consequent to interception of
consignments of Soda Ash transported by the petitioner from
Kochi Port to Madurai in Tamil Nadu State. At the time of
detention of the consignments, the petitioner was compelled to
make payment of security deposit to the tune of Rs.58,589/-, as
evidenced from Ext.P7 receipt. The detailed goods along with the
vehicle was released on the basis of Ext.P6 proceedings of the 1st
respondent.
2. Contention of the petitioner is that the detention of the
transport and the proceedings initiated under Section 47 was
totally unwarranted and unreasonable. According to the
W.P.(C)No. 35145 of 2010
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petitioner, the transport in question was made only on the basis
of transit pass issued and there was no transaction which attracts
any levy of tax under the provisions of the Kerala Value Added
Tax Act. Therefore, the petitioner is totally refuting the
allegations contended in the Ext.P5 notice.
3. Going by the scheme of the provisions contained in
Section 47 of the Kerala Value Added Tax Act, it is evident that
any detention effected under Section 47(2) of the Act need be
followed by an enquiry to be conducted by the competent
authority authorised under Sub Section (5) of Section 47. The
detaining officer should submit the connected records to the
authorised officer for the purpose of conducting necessary
enquiry in the manner prescribed. Sub Section (6) envisages an
enquiry to be conducted by the authorised officer, after affording
proper opportunity to the party concerned, and to take a decision
as to whether there was any attempt in evacuation of payment of
tax and as to whether the party is liable to be imposed with
penalty. The petitioner is always at liberty to raise all contentions
before the authorised officer including the contention that the
detention was not warranted and the transport in question does
not attract any levy under the Kerala Value Added Tax Act. It is
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free for the petitioner to take contentions before that authority to
the effect that, the transport was accompanied by all documents
as required under the statute and circulars issued in this regard.
4. Under the above mentioned circumstances, I am of the
view that the petitioner can be relegated to the process of
enquiry to be conducted by the authorised officer as provided
under Section 47(5) and 6. It is made clear that the petitioner
will be at liberty to take all contentions available, including the
contention that the detention itself was totally without
jurisdiction.
5. Under the above circumstances, this writ petition is
disposed of directing the 2nd respondent, who is the competent
authority, to finalise the enquiry pursuant to Exts.P5 and P6, after
affording an opportunity of hearing to the petitioner at the
earliest possible at any rate within one month of receipt of a copy
of this judgment.
C.K.ABDUL REHIM, JUDGE.
dmb