IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20627 of 2010(C)
1. M/S.ACUMEN MARKETING SOLUTIONS (P) LTD.,
... Petitioner
Vs
1. THE COMMERCIAL TAX INSPECTOR,
... Respondent
2. THE STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.E.P.GOVINDAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :06/07/2010
O R D E R
P.R.RAMACHANDRA MENON, J
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WP(C) NO. 20627 OF 2010
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Dated this the 6th day of July, 2010
JUDGMENT
The petitioner transported certain materials pursuant to the order
stated as received from M/s.Lenovo (I) Pvt. Ltd., Bangalore. The case of
the petitioner is that, they agreed to supply advertisement materials to
M/s.Lenovo (I) Pvt. Ltd., Bangalore for a consideration of Rs.4,89,835/- on
the strength of Ext.P2 purchase order dated 08.06.2010. As per the
instruction given to the petitioner from M/s.Lenovo (I) Pvt. Ltd., Bangalore,
a portion of the goods were directed to be taken to the agent M/s. Digital
World, Thrissur and it was accordingly, the goods were being transported
in the vehicle (the number of which is not discernible from Ext.P1 order)
when intercepted by the respondent on 26.06.2010, issuing Ext.P1 notice
under Section 47(2) of the Kerala Value Added Tax Act, doubting evasion
of tax and demanding security deposit to the extent specified therein.
2. The learned counsel for the petitioner submits that, there is
absolutely no element of sale in the instant transaction and that the
petitioner is not a registered dealer under the KVAT Act/Rules. The goods
transported were never intended for sale and it is only for advertisement
purpose and the products had to be got satisfied and approved by the
party who placed work order, i.e., M/s. Lenova India Private Limited,
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Bangalore and it was thereby had a …. portion of the materials diverted to
M/s.Digital World, Thrissur since the consignee at Thrissur is not prepared
to satisfy the security deposit as demanded in Ext.P1. The petitioner wants
to take the materials and accordingly approach before this Court seeking
for appropriate reliefs.
3. The learned Government Pleader for the respondents submits
on instructions that, the course and conduct pursued by the petitioner
cannot but be deprecated as there was no document to sustain
transportation. It is also brought to the notice of this Court that, no
document whatsoever was support the transaction was there except a
delivery note, which has consciously not been produced by the petitioner
before this Court. The learned Government Pleader submits that, the
delivery note which accompanied transportation revealed that the value of
the goods was only Rs.70,000/-, whereas the purchase list as borne by
Ext.P2 reveals that the total value is Rs.4,89,835/- thus issuing that the
delivery note which accompanied the transportation was never in
connection with the goods in question but referring to some other
transaction virtually making transportation without accompanying materials
as contemplated under any relevant provisions of law. This being the
position, the detention made by the respondents vide Ext.P1 is sought to
be sustained. It is also stated that, there was no invoice at the time of
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transportation and that the petitioner is not a registered dealer as admitted
by the petitioner himself.
4. This Court finds considerable force in the submission made by
the learned Government Pleader. The matter requires to be considered in
detail and adjudicated based on the evidence to be adduced with reference
to the relevant documents and other aspects by the appropriate authority.
But for this …… this Court finds that, there is no need to detain the goods
any further and the same shall be released to the petitioner on satisfying
the security deposit either in the form of ‘Bank Guarantee’ or by furnishing
such other security under relevant provisions of law, on which event the
goods shall be returned to the petitioner forthwith. This will be without
prejudice to the adjudication proceedings as above and the same shall be
finalised as expeditiously as possible, at any rate, within two months from
the date of receipt of a copy of this judgment.
The Writ Petition is disposed of accordingly.
P.R.RAMACHANDRA MENON
JUDGE
dnc