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.
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WP(C).NO. 25824 & 25838 of 2009
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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
