IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32528 of 2009(I)
1. M/S.SURABHI SUPREME MARBLE & GRANITES
... Petitioner
Vs
1. THE ASSISTANT COMMISSIONER (KVAT),
... Respondent
2. THE INTELLIGENCE INSPECTOR,
3. THE INTELLIGENCE OFFICER,
4. THE REGIONAL ENGINEER (IN-CHARGE),
For Petitioner :SRI.T.M.SREEDHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :13/11/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).Nos.32528 and 32575 of 2009
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Dated this the 13th day of November, 2009
J U D G M E N T
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1. The petitioners in these writ petitions have
approached this court on an earlier occasion seeking release of
the transport of “Granite Slabs” detained under Section 47(2) of
the Kerala Value Added Tax Act, 2003 (KVAT Act). This court
issued directions to the competent authority entrusted with the
power of adjudication under Section 47(6) to conduct a physical
verification and to take measurement of the goods, in the
presence of the petitioner, if necessary with the aid of an expert,
and to finalise the adjudication on the basis of the result of such
measurement.
2. In compliance with the directions contained in the
judgment, measurement was conducted with assistance of an
expert from the ‘Kerala State Nirmithi Kendra’ and the penalty
proceedings was finalised based on the report of such
measurement. It is revealed that the quantity of ‘Granite Slabs’
which was originally alleged in the notices issued under Section
47(2), has been considerably reduced as per the said
measurement. Consequently penalty is imposed only on the
W.P.(C).32528 & 32575/09 2
basis of the quantity of goods arrived through the fresh
measurement.
3. According to the petitioner, even the measurement
taken as above was not conducted in a proper manner and each
and every slabs contained in the transport was not measured
independently. It is also contended that the expert in question
has not conducted the measurement following the common trade
practice prevalent in the business parlance.
4. I am not inclined to entertain these writ petitions and
to consider merits of the contention raised above or to adjudicate
upon such contentions, because an effective remedy by way of
appeal is provided against the orders imposing penalty under
Section 47(6), as per the statute. Hence I am of the opinion that
the petitioners can be given with opportunity to challenge the
impugned orders before the appropriate appellate authority. It
is for the petitioners to substantiate their claims through proper
evidence before the appellate authority, with respect to the
correctness of the measurement.
5. In the result the writ petitions are dismissed without
prejudice to rights of the petitioners to approach the appellate
authority against the impugned orders of penalty. In case if such
appeals are filed, the appellate authority shall consider and
W.P.(C).32528 & 32575/09 3
dispose of the same independently, untrammeled by any
observations contained either in this judgment or in the
judgment in the previous cases.
C.K.ABDUL REHIM, JUDGE.
okb