High Court Kerala High Court

Wipro Ge Healthcare Pvt.Ltd vs The Commercial Tax Inspector on 7 July, 2010

Kerala High Court
Wipro Ge Healthcare Pvt.Ltd vs The Commercial Tax Inspector on 7 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 19474 of 2010(H)


1. WIPRO GE HEALTHCARE PVT.LTD.,
                      ...  Petitioner

                        Vs



1. THE COMMERCIAL TAX INSPECTOR,
                       ...       Respondent

                For Petitioner  :SRI.A.KUMAR

                For Respondent  :SRI.JAIRAM.V.MENON

The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :07/07/2010

 O R D E R
                   P.R. RAMACHANDRA MENON, J.
             ..............................................................................
                      W.P.(C) No. 19474 OF 2010
              .........................................................................
                         Dated this the 7th July , 2010

                                   J U D G M E N T

The petitioner, who is engaged in the manufacture and sale

of various diagnostic systems and allied equipments, having

registered office at Bangalore and other regional offices in other

places including Pondicherry as well as in Kerala as borne by

Exts. P1/P1(a) certificates of registration, on receipt of a

purchase order from the Addl. Second respondent (who is not a

dealer), transported a scanning machine to be supplied at the

doors of the Addl. Second respondent on the strength of Ext. P2

invoice. When it was being taken in the vehicle bearing No. TN-

20AK/2499, it was intercepted on 15.06.2010 issuing Ext. P6

notice under Section 47(2) of the KVAT Act, doubting evasion of

tax and demanding security deposit to the extent specified

therein.

2. On explaining the position as to the true state of affairs,

the respondents chose to issue a revised notice as borne by Ext.

P7, still maintaining the stand that the petitioner had to satisfy

the security deposit, in view of the alleged discrepancy. Even

W.P.(C) No. 19474 OF 2010

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though Exts. P8, P8(a) and P9 representations/explanations

were filed, the same did not yield any positive result, which made

the petitioner to approach this Court by filing this Writ Petition

for immediate interference .

3. The insinuating circumstances noted against

transportation of materials are given below:

“Wipro GE Healthcare, Bangalore sold a CT

Scanner and accessories to Travancore MRI

scans laboratory Pathanamthitta. As per the

invoice the consignor collected CST @ 2% and

attached the certificate of ownership, for the

transportation. The above consignor has

availed concessional rate against C form. A

registered dealer with CST registration can

provide C forms. But there is no evidence to

prove that, whether the consignee is a

registered dealer CST dealer or not. Hence the

evasion of tad suspected. SD demanded.”

The course and explanation offered from the part of the parties

concerned vide Exts.P8, P8(a) and P9 are given below:

“A. The invoice has been raised from Wipro GE

W.P.(C) No. 19474 OF 2010

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Healthcare, Pondicherry and goods moved from

Wipro GE Healthcare, Puducherry.

B. TIN number mentioned in the invoice is the

TIN number of Wipro GE Healthcare,

Puducherry under Puducherry VAT Act. Copy of

the registration certificate enclosed.

C. Rate of tax for Medical equipments in

Puducherry has been reduced from 4% to 2%.

Hence CST rate without C form is also 2%.

Copy of the notification enclosed.

D. The Bangalore address mentioned in the

invoice only shows the registered office of the

company, invoice specifically states the goods

are despatched from Puducherry warehouse.

E. The purchase of the equipment is for own

use at its Diagnostic centre at Pathanamthitta.

           Form    16   already     accompanied    with  the

           equipment. "

4. Heard the learned Government Pleader as well

5. The learned Counsel appearing for the petitioner submits

that the entire proceedings have been issued, causing detention

of the vehicle as well as the goods by the respondents totally on

a misconception as to the factual and legal position. It is

W.P.(C) No. 19474 OF 2010

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contended that the respondents are under the impression that,

since the tax collected is only at the rate of 2%, the consignee

has purchased the same availing the ‘concessional rate of tax’.

Since the consignee is not a registered dealer, the declaration

filed in Form 16 stating that it is for ‘own use’ does not tally with

the contents of other documents and hence evasion of tax is

doubted. It is also stated that by virtue of having the registered

office at Bangalore, as given at the top of Ext. P2 invoice, the

respondents had to doubt the evasion of tax, the goods having

been despatched from Puducherry.

6. With reference to the materials on record, including the

additional documents produced and marked as Ext. P10 to P15

along with I.A.No. 9223 of 2010, the learned Counsel for the

petitioner submits that the rate of tax sought to be realised

from the consignee at 2% is not by way of ‘concessional rate of

tax’ but the ‘original rate of tax’ as payable in the State of

Pondicherry, the same having been reduced from 4% to 2% by

virtue of relevant notification issued in this regard. The

correctness of the said submission is however sought to be

W.P.(C) No. 19474 OF 2010

5

rebutted by the learned Government Pleader stating that this is

a fact which requires to be considered and established in the

course of adjudication.

7. With regard to the discrepancy as to the place of

registration and the place of despatch, the learned Counsel for

the petitioner submits that the actual position is very much

discernible from Ext. P2 invoice itself; wherein the registered

office is given at the top, ie., ‘Bangalore’, while the place of

despatch is clearly given at the bottom as from ‘Puducherry’. The

learned Counsel further submits that such a course was being

pursued in the matter of preparation and issuance of invoice, by

virtue of the centralised pattern of invoice available in the

Southern States of India, though such a course has been

changed in Kerala, pursuant to which, the petitioner has also

now changed the pattern . It is also brought to the notice of this

Court that the actual ‘TIN’ is clearly given in Ext. P2 and that

similar course is very much discernible from other documents

produced and marked as Exts. P10 to P15 along with

I.A.No.9223 of 2010. Referring to the contents of Ext. P15, the

W.P.(C) No. 19474 OF 2010

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learned Counsel further submits that the tax realised from the

petitioner is only at the rate of 2%, which by itself shows that it

is the actual rate of tax available in the concerned State and

not the concessional rate of tax. The learned Counsel explains

that Ext. P4 delivery note has been issued from ‘Puducherry’

and it is in the particular form as prevailing in the State of

Pondicherry, which includes the instance of sale as well, as

obvious therefrom. The factum of sale by the petitioner/consignor

and the factum of ‘own use’ to be made by the consignee, (who

is not a registered dealer and who placed the order for ‘own

use’) are very much revealed from the materials on record,

submits the learned Counsel.

8. Considering the facts and circumstances, this Court finds

that there is considerable force in the submissions made from the

part of the petitioner. However, as submitted by the learned

Government Pleader, this is a matter which requires to be

finalised in the course of adjudication proceedings, in view of

issuance of notice under Section 47(2) and the turn of events

including the actual rate of tax. But, for that reason, this Court

W.P.(C) No. 19474 OF 2010

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does not find it necessary to detain the goods as well as the

vehicle any further and the same shall be released to the

petitioner forthwith, on condition that the petitioner executes a

‘simple bond’ for the amount demanded as security deposit in

Ext. P7 notice. This will be without prejudice to the rights of the

respondents to pursue the adjudication proceedings, which

exercise shall be finalised in accordance with law as

expeditiously as possible, at any rate, within a period of two

months from the date of receipt of a copy of the judgment.

The Writ Petition is disposed of.

P.R. RAMACHANDRA MENON,
JUDGE.

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