IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25355 of 2009(L)
1. M/S.MANJILAS RICE MILL,
... Petitioner
Vs
1. THE STATE OF KERALA REPRESENTED
... Respondent
2. THE COMMERCIAL TAX INSPECTOR,
3. ASSISTANT COMMISSIONER (ASSMT),
For Petitioner :SMT.K.LATHA
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :08/09/2009
O R D E R
C.K.ABDUL REHIM, J
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W.P.(C) No.25355 of 2009
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Dated this the 8th day of September, 2009
J U D G M E N T
1. Petitioner is a registered dealer under the KVAT
Act and CST Act borne on the files of the third respond,
assessing authority. The petitioner purchased a Generator
set from a dealer in Karnataka, as per Ext.P2 invoice.
According to the petitioner the Generator set is meant for
installation at their factory and the purchase is made
against issuance of ‘C’ Form, since only 2% Central Sales
Tax was collected by the consignor. But the transport was
detained by the second respondent at the Check Post and
notice under section 47(2) of the KVAT Act was issued, as
evidenced by Ext.P3. As per Ext.P3 petitioner was
requested to furnish security to the tune of Rs.1,04,900/- for
permitting onward transport. The main reason for
detention as enumerated in Ext.P3 is that the petitioner is
not authorised to purchase Generator set as per the
certificate of registration, at the reduced rate of CST. But it
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is contended by the petitioner that in the registration
certificate of the petitioner, machineries are also included
under the description of goods dealt with, by way of
amendment incorporated, with effect from 28.7.2009.
Ext.P1 is the certificate of registration produced in this
regard.
2. Heard the learned Government Pleader. It is
contended that even assuming the machineries are included
in the registration certificate, that will not entitle them for
purchase of Generator set at the reduced rate of CST by
issuance of ‘C’ Form. The machineries and Generator set
are different commodities, is the contention. Hence it is
insisted that release of goods may be ordered only on the
petitioner furnishing proper security for the amount
demanded in Ext.P3.
3. Having considered the facts and circumstances of
the case, I notice that the petitioner is a registered dealer
under the third respondent. Further there is no prima facie
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evidence to show that the transport of Generator set was for
any purpose other than own use of the petitioner at their
factory. However, since the adjudication as contemplated
under Section 47(2) is yet to be conducted, I am not
entering upon any finding regarding the liability for
payment of tax with respect to the goods under transport.
But considering the proviso to Section 47(2) of the Act and
having regard to the nature of the goods and other relevant
matters, I am inclined to direct release of the goods along
with vehicle on the petitioner furnishing a bond. The
adjudication as contemplated under Section 47(2) need be
completed at the earliest.
4. In the result, the petition is disposed of directing
the second respondent to release the goods detained under
Ext.P3 along with vehicle on the petitioner furnishing
Security Bond as provided under the KVAT Rules, without
sureties, for the amount demanded under Ext.P3. The
appropriate authority shall expedite the adjudication
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proceedings and finalise the same after hearing the
petitioner as early as possible, at any rate within a period of
two months from the date of release of the goods.
C.K.ABDUL REHIM
JUDGE
app/-