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Saint Gobain India Limited vs The Commercial Tax Inspector on 16 September, 2009

Kerala High Court
Saint Gobain India Limited vs The Commercial Tax Inspector on 16 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 25824 of 2009(W)


1. SAINT GOBAIN INDIA LIMITED,
                      ...  Petitioner

                        Vs



1. THE COMMERCIAL TAX INSPECTOR,
                       ...       Respondent

                For Petitioner  :SRI.ANIL S.RAJ

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :16/09/2009

 O R D E R
                       C.K.ABDUL REHIM,J.
                   -------------------------------
              WP(C).NO. 25824 & 25838 of 2009
                  ---------------------------------
        Dated this the 16th      day of September, 2009

                           JUDGMENT

The challenge in these writ petitions is against the detention

of goods transported by the petitioner demanding payment of

advance tax.

2. In WPC.No.25824/2009 the petitioner has effected inter-

State transport of “float glass” under Exts.P1 and P2 series

invoices. The transport was intercepted at the Commercial Taxes

Check Post at Walayar on issuing Exts.P3 and P4 notices,

demanding payment of Advance Tax as per value shown in the

invoices. According to the petitioner, there was a mistake crept

in while preparing the invoices with respect to value of goods and

hence they had approached the authorities at the check post to

accept the corrected invoices. But the authority concerned has

not permitted replacement of the invoices by corrected ones. As

things stands now it is the case of the petitioner that the

consignee has refused to accept the goods and therefore through

Exts.P7 and P8 the petitioner had requested to permit them to

WP(C).25824/2009 & 25838/09 2

take back the goods to Tamil Nadu.

3. In a similar situation goods transported under Ext.P1

series invoices in WPC.No.25838/2009 was also detained, at the

Commercial Taxes Check Post at Aryankavu, and notice was

issued demanding payment of advance tax. There also the

consignee had refused to accept the goods and therefore Ext.P3

request was submitted to the respondent seeking permission to

take back the goods.

4. In the statement filed on behalf of the respondent in

both the cases it is averred that the goods under consignment

attracts payment of Advance Tax and hence the goods can be

released only on paying Advance Tax as per the demand. It is

stated that glass is a commodity where attempt at evasion of tax

is highly prone, and therefore the contention of the petitioner

that higher sale price was invoiced due to an error cannot be

accepted. Further it is stated that if the consignor wants to take

back the goods, it can be done only as per procedure under the

Act and Rules, by issuing Form No.9 credit note as provided

under section 41 of the KVAT Act.

5. Having considered the rival contentions I am of the

WP(C).25824/2009 & 25838/09 3

opinion that since detention is at the check post the goods cannot

be considered as entered the state, and since the consignor is not

ready to make payment of the Advance Tax, it can be permitted

to transport back. The liability for payment of tax attracted only

if inter-state sale is effected and in this case the request is to

take back the goods without the sale being materialised. Hence I

find no reasonable objection against the consignor taking back

the goods to the State of Tamil Nadu. Under the above

circumstances, the writ petition is disposed of directing the

respondent in both the cases to permit the petitioner to take

back the goods detained under the invoices to the State of Tamil

Nadu. The transport of the goods back to the State of Tamil Nadu

shall be permitted forthwith on production of this judgment.





                                 C.K.ABDUL REHIM,JUDGE
pmn/

WP(C).25824/2009 & 25838/09    4

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