IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19932 of 2010(N)
1. M/S.CONVERGENT TECHNOLOGIES, 204,
... Petitioner
Vs
1. THE STATE OF KERALA REPRESENTED BY
... Respondent
2. THE INTELLIGENCE INSPECTOR, SQUAD NO.11,
For Petitioner :SMT.K.LATHA
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :29/06/2010
O R D E R
P.R.RAMACHANDRA MENON, J.
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W.P.(C) No.19932 of 2010
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Dated this the 29th day of June, 2010
J U D G M E N T
The petitioner who is the consignor in Bangalore
had despatched a generator, to the consignee in
Thiruvananthapuram, which is covered by Ext.P1 Purchase order
and Ext.P2 invoice. The goods were sent from Bangalore
through a Courier. From the admitted pleadings and
proceedings, it is revealed that, it was brought to the Airport at
Nedumbassery in Cochin and it was being taken in the vehicle
bearing Registration NO. KL-01-AB-534 to the premises of the
consignee in Thiruvananthapuram. It was at this point, that the
vehicle was intercepted, leading to the issuance of Ext.P3 notice
under Section 47(2) of the KVAT Act, observing that there was
clear violation of the stipulation contemplated under Section 46
(3)(e) of the KVAT Act, 2003, doubting evasion of tax and
demanding security deposit to the extent as specified therein.
W.P.(C) No.19932/2010
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2. The consignor has approached this Court by
filing this writ petition, stating that, due to some or other
reason, the consignee is not ready to accept the generator and
hence the petitioner wants to take it back. It is also stated that
there is no sale involved and that, there is no attempt to evade
any tax under any circumstance. The learned counsel for the
petitioner also brought it to the notice of this Court, with
reference to the actual rate of tax payable, that the particular
item will attract tax only at the rate of 4%, whereas, the
probable tax calculated by the concerned respondent while
issuing Ext.P3 notice is at the rate of 12.5%, demanding security
deposit to an extent of double the amount, which is not correct
or proper under any circumstance.
3. The learned Government Pleader appearing for
the respondents submits that the petitioner is not a registered
dealer in Kerala and that the attempt was only to deliver the
item only to the consignee, conspicuously trying to evade the
W.P.(C) No.19932/2010
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tax. It is also stated that infringement of Section 46(3)(e) of
the KVAT Act is undisputed, in so far as the arrival of the goods
by Air was not intimated to the departmental authority at any
time. The learned Government Pleader further concedes that
the actual rate of tax applicable to the commodity in question
could only be at the rate of 4%.
4. In the above circumstances, this Court finds that
the probable liability and the amount to be furnished as security
deposit to be satisfied by the petitioner have to be re-worked,
adopting the actual rate of tax at 4%, and a revised notice shall
be issued to the petitioner forthwith, on which event, it is open
to the petitioner to satisfy the security deposit, either in the form
of ‘Cash/DD’ or by way of ‘Bank Guarantee’, as the case may be,
on which event, the goods shall be released to the petitioner
forthwith. This will be without prejudice to the rights and
liberties of the respondents to pursue the adjudication
proceedings, which shall be finalised in accordance with law, as
W.P.(C) No.19932/2010
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expeditiously as possible, at any rate, within a period of 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.
nj.