IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31974 of 2008(F)
1. T.V.K.CONSTRUCTIONS
... Petitioner
2. M/S.JVP & SONS, REP. BY ITS PROPRIETOR
Vs
1. INTELLIGENCE INSPECTOR
... Respondent
2. COMMERCIAL TAX OFFICER (WORKS
For Petitioner :SRI.V.V.ASOKAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :12/11/2008
O R D E R
K.M. JOSEPH, J.
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W.P.(C) No. 31974 OF 2008 F
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Dated this the 12th day of November, 2008
J U D G M E N T
Petitioners challenge Exts.P3, P6 and P9.
Direction is sought to release the truck bearing registration
No.TN 69F/1482 and JCB (LW 321 Front End Loader).
Further direction is sought to release the truck and JCB to
the petitioners so as to enable them to take back the JCB
to Tuticorin to obtain registration for the JCB from the
concerned Regional Transport Officer of the Motor
Vehicles Department.
2. Case of the petitioners in brief is as follows. The
1st petitioner is a registered dealer under the KVAT Act
engaged in undertaking civil contract works. The 2nd
petitioner is doing business of giving on hire JCB, earth
removers, etc. On 24.8.2007, M/s.Kerala Minerals and
Metals Ltd., Chavara awarded a work to the 1st petitioner.
WPC.31974/08
: 2 :
The contract period was extended for a period of one year
from 4.9.2008. The 1st petitioner took on hire a JCB(Front
End Loader) from the 2nd petitioner for one year. It was sent
to the work site of the 1st petitioner. The truck and the JCB
carried therein crossed Amaravila check post without any
objection after due verification. When it reached near
Neyyattinkara, the 1st respondent intercepted the truck and
issued a notice under section 47(2) of the KVAT Act.
Petitioners filed reply. Thereafter, this court directed a
decision to be taken on the reply and Ext.P9 resulted. By
Ext.P9, the officer reiterated the demand for security.
3. I heard learned counsel for the petitioners and
learned Government Pleader. Learned counsel for petitioners
would contend that the JCB was meant for carrying on a work
contract with M/s.Kerala Minerals and Metals Ltd. and it was
accompanied by the purchase order, Form-16 certificate and
also the letter dated 14.8.2008 (the last produced as Ext.P8).
In Ext.P9, various aspects have been considered by the
WPC.31974/08
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officer as part of the reasoning to reiterate the demand for
security. In the certificate issued in Form-16, the 1st petitioner
is shown as the owner. Learned counsel for the petitioners
would point out that it is only a mistake. The JCB in question
is a new one which has not even been registered under the
Act. Learned counsel for petitioners points out that the 1st
petitioner was not aware that it is a new vehicle. It is also
noted that the date of detention of the Front End Loader was
on 14.10.2008 and there was a gap of 26 days and there was
sufficient time, if ownership is with the 2nd petitioner, to
register the vehicle before the motor transport authority
concerned. In the declaration filed with the Commercial Tax
Officer, Amaravila, the name of the consignee is M/s.Kerala
Minerals and Metals Ltd., Chavara, it is noted.
4. Learned counsel for petitioners submitted that the
petitioners may be permitted to take back the vehicle and an
Advocate Commissioner may be appointed in this regard.
The vehicle has been detained at a place near Neyyattinkara,
WPC.31974/08
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where the proceedings have been initiated. In the nature of
the proceedings, prima facie, I would not think that a case is
made out to permit the petitioners to take back the vehicle.
Then, learned counsel for the petitioners submits that the
vehicle may be released on executing a bond for the value of
the vehicle arrived at which amounts to Rs.14,50,000/- which
is discernible from the documents. A calculation is made in
Ext.P9. In the facts and circumstances of the case, I would
think that the vehicle can be released to the petitioners on the
petitioners furnishing Bank Guarantee in a sum calculating
the tax at twice the rate of the value calculated as
Rs.14,50,000/- and a simple bond being executed without
sureties for the balance amount. Accordingly, writ petition is
disposed of as follows.
If the petitioners furnish bank guarantee for a sum of
Rs.3 lakhs (Rupees Three Lakhs) and execute a simple bond
without sureties for the balance amount, the goods in
question will be released to the petitioners forthwith. If the
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registration is sought for within the State of Kerala by the 2nd
petitioner, the concerned authority will take a decision thereon
in accordance with law.
Sd/-
(K.M.JOSEPH, JUDGE)
aks