IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 WP(C).No. 35722 of 2009(I) -------------------------- PETITIONER(S): --------------- M/S.DAMODAR CAHSHEW COMPANY, AMBALATHARA, KANHANGAD, KASARGOD, REP: BY B. YOGESH PRABHU, MANAGING PARTNER. BY ADV. SRI.HARISANKAR V. MENON RESPONDENT(S): --------------- 1. ASST. COMMISSIONER (KVAT), COMMERCIAL TAXES SPECIAL CIRCLE, KASARGOD. 2. DY. COMMISSIONER OF COMMERCIAL TAXES (APPEALS), KOZHIKODE. 3. SALES TAX INSPECTOR, COMMERCIAL TAX CHECK POST, PERLA. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.35722 OF 2009 ------------------------------ Dated this the 11th day of December, 2009 J U D G M E N T ---------------------- 1. Petitioner is aggrieved by detention of transport of goods by the 3rd respondent, on issuing Ext.P1 notice. It is mentioned in Ext.P1 that the 1st respondent had issued direction to detain goods belonging to the petitioner, because there is huge arrears of tax due from them. It is stated that, with respect to the assessment for the years 2001-02 to 2004-05, the second appeals pending before the Appellate Tribunal were already heard and those appeals are posted for pronouncing orders. With respect to recovery of the amounts covered under those assessments, the petitioner had approached this court, and in the judgment in WP(C).No.34219/09, dt.7.12.2009 recovery has already been stayed till the disposal of the appeals. So also it is submitted that, with respect to the assessment for the month of January 2009, this court in the judgment in WP(C).No.35850/09 had stayed steps for recovery on directing the appellate authority to consider and pass orders on the delay condonation application as well as the stay petition. Therefore it is contended W.P.(C).35722/09-I 2 that in effect the arrears sought to be recovered are under stay granted by this court. 2. The petitioner further contended that by virtue of an order passed in appeal by the State Level Committee for sales tax exemption, they are entitled for exemption from payment of sales tax to the tune of a considerable amount. So also it is contended that the amounts paid pursuant to orders issued permitting Amnesty Scheme need be adjusted against the arrears. Under these circumstances the detention alleging arrears in payment of tax amount is not sustainable, is the contention. 3. Noticing the judgment of this court in WP(C). Nos.34219/09 and 35850/09, it is evident that the recovery steps are under order of stay. Therefore it could not be alleged that the petitioner is in huge arrears. Under such circumstances the detention solely for the reason of arrears in payment of tax, cannot be sustainable. 4. Under the above circumstances I direct the 3rd respondent to release the vehicle along with goods detained under Ext.P1, forthwith. 5. It is made clear that the 1st respondent is at liberty to evaluate the arrear position with respect to the petitioner and if W.P.(C).35722/09-I 3 it is found that the petitioner is in arrears of any considerable amount other than what is covered by the judgments of this court mentioned above, fresh orders requiring detention of transport can be issued, if necessary. C.K.ABDUL REHIM, JUDGE. okb