IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32648 of 2009(A)
1. M/S.SHIVANI DESIGNER HARDWARE,
... Petitioner
Vs
1. THE INTELLIGENCE INSPECTOR,
... Respondent
2. THE ASSISTANT COMMISSIONER (ASSMT),
3. THE COMMISSIONER OF COMMERCIAL TAXES,
For Petitioner :SRI.TOMSON T.EMMANUEL
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :16/11/2009
O R D E R
C.K. ABDUL REHIM, J
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WP (C).No. 32648 of 2009
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Dated this the 16th day of November, 2009.
J U D G M E N T
1. Petitioner is a registered dealer having their place of
business at Ernakulam, dealing in Harware, Kitchen Cabinets,
Plastic goods etc. This writ petition is filed challenging
detention of transport of goods effected from Cochin Port to
the petitioner’s godown at Muttom near Aluva. According to
the petitioner the goods in question are PVC profile imported
from China through Cochin Port and transported to the
godown of the petitioner. It is stated that the transport was
accompanied by Commercial Invoice, Bill of Entry and
Delivery Note in Form No.15. The transport was intercepted by
the first respondent on issuing Ext.P5 notice under Section 47
(2) of the Kerala Value Added Tax Act 2003 (KVAT Act 2003).
The reasons for detention mentioned therein is that the
petitioner has no declared godown at Muttom near Aluva and
further, as per the registration particulars, the commodities
dealt with by the petitioner included only Cooking Appliances
and Gas Fuel. It is also noted that as per the Delivery Note the
WPC.No.32648 of 2009 (c)
: 2 :
goods are consigned to Ernakulam and further the value shown
in the Delivery Note is not the value disclosed as per the Bill of
Entry.
2. According the petitioner, the item, PVC profile, was
subsequently included in the registration certificate as
evidenced by Ext.P1. With reference to the godown at Muttom,
it is submitted that, the petitioner had already issued a letter on
31/05/2008 to the assessing authority, as evidenced in Ext.P1
(a), copy of the Local Delivery Book. It is further submitted that
the value shown in the Delivery Note is the value as per the Bill
of Entry, excluding the customs duty. Therefore, it is contended
that the transport was bonafide and genuine and there was a no
attempt at evasion of payment of tax.
3. Heard the learned counsel for the petitioner and
Government Pleader appearing for the respondent. After
considering facts and circumstances, I am of the opinion that
pending finalisation of adjudication the goods can be released
on the petitioner furnishing proper security.
WPC.No.32648 of 2009 (c)
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4. Therefore, the writ petition is disposed of directing the
first respondent to release the goods along with vehicle
detained under Ext.P5, on the petitioner remitting 50% of the
amount of security deposit demanded under Ext.P5, towards
advance tax, without prejudice to finalisation of adjudication
under Section 47 and without prejudice to imposition of penalty,
if found ultimately liable. The petitioner shall also furnish
security bond without sureties in the form provided under the
KVAT Rules for the balance 50%.
5. The competent authority under section 47 is directed to
finalise the adjudication after affording an opportunity to the
petitioner, as early as possible, at any rate, within the period of
two months from the date of release of the goods.
C.K. ABDUL REHIM, JUDGE
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