IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29722 of 2010(M)
1. JOSE PRAKASH.K.K., AGED 53 YEARS,
... Petitioner
Vs
1. THE INTELLIGENCE INSPECTOR,
... Respondent
2. THE INTELLIGENCE OFFICER,
3. THE COMMISSIONER, COMMERCIAL TAXES,
4. STATE OF KERALA, REP.BY ITS
5. THE SALE TAX OFFICER,
For Petitioner :SRI.C.K.SREEJITH
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :28/09/2010
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.29722 of 2010
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Dated this the 28th day of September, 2010
J U D G M E N T
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Petitioner is approaching this court seeking
release of transport of Granite Slabs detained by the 1st
respondent under Ext.P3 series notices, issued under
Section 47(2) and 69(1) of the Kerala Value Added Tax Act,
2003 (KVAT Act). According to the petitioner, the Granite
Slabs were purchased from Bangalore for own use with
respect to construction of his residential building. But the
transport was intercepted at the Commercial Tax Ckeck Post
at Walayar, and Ext.P3 series notices were issued. In Ext.P3
the reason for detention mentioned is that the validity period
of the building permit and approved plan, which
accompanied the transport, had expired on 23.02.2009. It is
also noticed that on physical measurement there was
variation in the quantity to the tune of 543 Sq: Ft: in excess.
Further it is noticed that there is variation in the quality of
the Granite Slabs. On the basis of the above allegation it is
suspected that the transport was effected not for own use,
but for sale. The 1st respondent has also initiated
W.P.(C).29722/10-M -2-
proceedings under Section 69(1) to impose penalty on the
transporter with respect to difference in value pertaining to the
excess quantity found.
2. Learned counsel for the petitioner submitted that the
transport was accompanied by building permit issued from the
Muncipality along with approved plan and also a certificate
issued by the Village Officer, apart from invoice with respect to
purchase and Form No.16. The reason for detention that the
permit remained expired has no basis since the petitioner had
already applied for renewal, is the contention.
3. Government Pleader appearing for the respondents
submitted that the officer concerned has conducted physical
verification at the construction site and it was revealed that the
petitioner had already fixed flooring tiles in the first floor and
tiles are seen kept stocked for using in the ground floor. Hence
the Granite Slabs transported are not required for own use.
4. Whether the transport was genuine and as to whether
there was any attempt in evasion of payment of tax are matters
which need be decided on finalisation of adjudication
contemplated under Section 47. Therefore, I am not entering
into any findings regarding the allegations, which are in dispute.
I am of the opinion that the writ petition can be disposed of
directing release of the goods as well as the vehicle, on the
W.P.(C).29722/10-M -3-
petitioner furnishing adequate security.
5. In the result, the writ petition is disposed of directing
the 1st respondent to release the goods detained along with the
vehicle under Ext.P3 series notices, on the petitioner furnishing
Bank Guarantee for the amounts of security deposit and penalty
amount demanded under Ext.P3 series notices.
6. The competent authority will finalise the enquiry at
the earliest possible, after affording an opportunity of hearing to
the petitioner, at any rate within a period of two months from the
date of release of the goods.
C.K.ABDUL REHIM, JUDGE.
okb