The Sundaram Finance Ltd. vs The State Of Kerala Represented By … on 11 January, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 9655 of 2003(Y)


1. THE SUNDARAM FINANCE LTD., REPRESENTED
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA REPRESENTED BY THE
                       ...       Respondent

2. THE SALES TAX OFFICER, SALES TAX OFFICE,

3. SALAVUDHEEN S.I., S.S.RICE MILL,

                For Petitioner  :SRI.VPK.PANICKER

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR

 Dated :11/01/2008

 O R D E R
                  C.N. RAMACHANDRAN NAIR, J.
                   --------------------------------------------
                          O.P. NO. 9655 OF 2003
                   --------------------------------------------
                Dated this the 11th day of January, 2008

                                 JUDGMENT

Vehicle while being used for transport of goods was detained for

evasion of tax. Penalty under Section 29A(4) and Section 45B of the

KGST Act are levied on the owner/transporter of the vehicle.

Petitioner is the financier who has first charge over the vehicle.

Counsel for the petitioner contended that petitioner is entitled to

repossess the vehicle because of the default committed by the owner.

Even though Govt. Pleader submitted that recovery can be made by

attachment and sale of the vehicle as defaulter is subject to penalty,

there is no specific provision in the statute authorising first charge on

the vehicle. In any case I do not think this Court should decide the

matter at this distance of time because seizure was in 2003 and it is not

known whether the owner of the vehicle has cleared the penalty. O.P.

is accordingly disposed of leaving freedom to the petitioner to proceed

for recovery against the borrower. If the vehicle is still in the custody

of the department, there will be direction to the concerned officer to

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hear the registered owner and the petitioner and if penalty is payable, to

release the vehicle on payment of penalty. If the registered owner

against whom penalty is levied does not clear the liability then the

Officer will consider whether there is prior charge on the vehicle, and if

so, petitioner should be given an option to remit the penalty and get the

vehicle released. If Government has no priority over the petitioner’s

first charge, vehicle should be sold in public auction and sale proceeds

should be appropriated first towards the amount due to the petitioner

and then balance can be appropriated by the Government towards

liability for penalty. Entire proceedings will be completed within a

period of two months from the date of production of a copy of this

judgment by the petitioner.

(C.N. RAMACHANDRAN NAIR)
Judge
kk

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