Essar Telecom … vs The Commercial Tax Inspector on 5 October, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 27760 of 2009(L)


1. ESSAR TELECOM INFRASTRUCTURES(P)LTD.
                      ...  Petitioner
2. KUNHAMED HAJI

                        Vs



1. THE COMMERCIAL TAX INSPECTOR
                       ...       Respondent

                For Petitioner  :SRI.T.MADHU

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :05/10/2009

 O R D E R
                        C.K.ABDUL REHIM,J.
                    -------------------------------
                   WP(C).NO. 27760 of 2009
                   ---------------------------------
           Dated this the 5th      day of October, 2009

                             JUDGMENT

The first petitioner is a company engaged in the business

of providing Telecom services. The second petitioner is the

owner of the property wherein the first petitioner had entered

into an agreement erect a ‘Telecom Tower’, as per Ext.P1.

Grievance of the petitioners is that respondent had intercepted

and detained transport of a consignment ” Telecom Tower parts”

brought by the first petitioner by way of branch transfer from

their branch at Orissa to the State of Kerala. Ext.P3 is the notice

issued on interception. The reason for detention noted in Ext.P3

is that all the documents accompanied the transport showed that

the consignee is the second petitioner. But there is no document

accompanied to prove that the second petitioner has no liability

to pay tax under the provisions of the KVAT Act.

2. According to the petitioners the goods were intended to

be transported to the premises of the second petitioner wherein

Telecom Tower was proposed to be erected. But the goods was

WP(C)27760/09 2

transported by way of branch transfer from Orissa branch of the

first petitioner. The mistake in preparing the documents

accompanied the transport, in the name of the second petitioner,

was only a bonafide error.

2. The question whether there was any attempt at evasion

of payment of tax pertaining to the transport is a matter which is

to be decided on completion of the process of adjudication as

contemplated under section 47 of the KVAT Act. It is not proper

for this court to enter on the merits and to arrive at a finding at

this stage. However I am of the opinion that the consignment

need not be detained till finalisation of the adjudication and the

petitioners can be permitted to get release of the goods on

furnishing proper security for the value demanded under Ext.P3.

3. Under the above circumstances the writ petition is

disposed of directing the respondent to release the goods along

with the vehicle detained under Ext.P3 notice, on the petitioners

furnishing bank guarantee for the amount of security deposit

demanded thereunder. The competent authority under section

47(5) and (6) of the KVAT Act is directed to expedite the

adjudication proceedings and to complete the same as early as

WP(C)27760/09 3

possible at any rate within two months from the date of release

of the goods.

C.K.ABDUL REHIM,JUDGE
pmn/