IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 26303 of 2009(G) -------------------------- PETITIONER(S): --------------- BIJU ALEX, MATTACKAL HOUSE, KADAPRA, MANNAR PO, THIRUVALLA, PATHANAMTHITTA. BY ADV. SRI.SOJAN JAMES RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER(WORKS CONTRACT), PATHANAMTHITTA. 2. THE SALE TAX INSPECTOR, SALES TAX CHECK POST, BANGARA-MANJESWAR, KASARAGOD. GOVERNMENT PLEADER SRI.C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.26303 OF 2009 ------------------------------ Dated this the 18th day of September, 2009 J U D G M E N T ---------------------- 1. Petitioner is aggrieved by detention of an Excavator transported by him interstate, from the State of Karnataka. According to the petitioner he is a works contractor having registration under the provisions of the Kerala Value Added Tax Act, as evidenced by Ext.P1 certificate. The purchase of the Excavator was for his own use in execution of a civil contract work awarded to him by the Rural Development Agency of the Sate Government. The transport was accompanied with Ext.P3 invoice and Ext.P4 Form 16 Declaration (certificate of ownership) under the provisions of the KVAT Act. The transport was intercepted at the check post at Bangara, Manjeswar, and Ext.P5 notice was issued by the 2nd respondent. The reason for detention stated in Ext.P5 is that the consignee is not a registered dealer under the CST Act, and hence he is not entitled to effect interstate purchase. 2. The reason for detention mentioned in Ext.P5 is not elaborative. Liability for payment of tax will be attracted only if the petitioner is bringing the Excavator for re-sale within the State. In other words the tax liability will be limited only to that of a works contractor. W.P.(C).26303/09 2 3. However the question whether there was any attempt at evasion of payment of tax is a matter which has to be decided on finalisation of the process of adjudication contemplated u/s 47 of the KVAT Act. Hence I am not expressing any opinion on merits. But I am of the opinion that release of the goods can be ordered pending finalisation of the adjudication, on the petitioner furnishing security, especially in view of the proviso to section 47(2) of the KVAT Act. 4. Therefore the writ petition is disposed of directing the 2nd respondent to release the goods detained under Ext.P5 along with the vehicle, on the petitioner furnishing security bond as provided under the Rules without sureties, to extent of the amount demanded in Ext.P5. Petitioner shall also furnish an undertaking in the form of a Bond before the 2nd respondent to the effect that pending finalisation of the adjudication he will not in any manner transfer ownership or possession of the Excavator in question. It is further directed that the competent authority shall expedite finalisation of the adjudication proceedings, after affording opportunity of hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of release of the Excavator. C.K.ABDUL REHIM, JUDGE. okb