IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WP(C).No. 4189 of 2008(W) ------------------------- PETITIONER: ------------ P.M.ASHRAF, M/S.KALPAKA CHICKEN AGENCIES, PUTHANATHANI, PUNNATHALA P.O., MALAPPURAM-676 552. BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.S.AMINA RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, KERALA GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM- 695 003. 2. THE COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM-695 003. 3. INSPECTING ASSISTANT COMMISSIONER, WALAYAR CHECK POST, WALAYAR-678 624. 4. COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR (IN), GREEN CHANNEL, WALAYAR-678 624. 5. INTELLIGENCE INSPECTOR, SQUAD NO.VIII, PALAKKAD-678 014. 6. ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, COMMERCIAL TAXES, MALAPPURAM-676 551. 7. DEPUTY COMMISSIONER, COMMERCIAL TAXES, PALAKKAD-678 014. BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC,J. ============================= WRIT PETITION NO. 4189 OF 2008 ============================= Dated this the 5th day of February 2008 JUDGMENT Ext.P6 notice issued under Section 47(16A) of the KVAT Act 2003 is under challenge. By this notice, the petitioner is directed to remit advance tax for the consignment detained taking value at the rate of Rs.40/= per kg. Petitioner submits that Ext.P2 is the invoice and that the price paid was only Rs.24/= per kg. According to him, since the demand made in Ext.P6 was exorbitant, he expressed his inability to comply with Ext.P6 and offered that the department can take over the stock by paying him 10% of the amount, than is what is indicated in the delivery note. 2. The irregularity, according to the department, appears to be of under valuation and the correctness of this allegation is a matter to be examined and found out in an adjudication that is to be held. In the meantime, pending such adjudication, the petitioner being a registered dealer, I do not think it is necessary W.P.(C)4189/2008 2 to detain the live chicken. Therefore, I direct that on the petitioner remitting the advance tax for the stock detained, on the value as indicated in Ext.P2 invoice, and furnishing a bond without sureties for the balance amount indicated in Ext.P6 notice, the consignment now detained shall be released to the petitioner. However, adjudication will be conducted and thereafter the parties will be governed by the order to be passed. ANTONY DOMINIC, JUDGE css/