IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WA.No.2248 of 2008 ---------------------------------- AGAINST THE JUDGEMENT IN WPC.No.26527/2008 Dated 04/09/2008 .................... APPELLANT/ PETITIONER:- ------------------------------------ MR.MARTIN KURUVILA, S/O.K.V.KURUVILA, PANCHAVADI APARTMENTS, PANCHAVADI COLONY, VYTTILA, KOCHI - 682 019. BY ADV. SRI.DEEPU THANKAN ADV. SMT.NAZEEBA. RESPONDENTS/ RESPONDENTS:- ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR, PALAKKAD DISTRICT. 3. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, PALAKKAD. BY SENIOR GOVERNMENT PELADER SRI.MUHAMMED RAFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ----------------------------------------------------- W.A.No.2248 of 2008 ---------------------------------------------- Dated, this the 26th day of November, 2008 JUDGMENT H.L.Dattu, C.J. Ext.P8 notice issued by the Commercial Tax Inspector, Commercial Tax Check Post was the subject matter of W.P.(C) No.26527/2008. 2. In the notice issued, the Check post authority has noticed the following omission. It is as under: “The consignee not Registered dealer under KVAT Act. Subsequent sale of the consignment within the State will effect loss of revenue to the State.” 3. It was the specific case of the petitioner before the Court that, he has purchased the JCB Machine only for his personal use and not for re-selling the vehicle. 4. The check post authority has directed the petitioner to pay a sum of Rs.3,91,040/- for the release of the vehicle. Aggrieved by the said notice issued by the check post authority, the petitioner was before this Court in W.P.(C) No.26527/2008. 5. The learned Single Judge, while disposing of the writ petition has directed the respondents to release the vehicle detained, on the petitioner furnishing Bank Guarantee for a sum of Rs.3,91,040/- W.A.No.2248/2008 -2- mentioned in Ext.P8 notice. Calling in question the correctness or otherwise of the said order passed by the learned Single Judge the petitioner is before this Court. 6. Looking into the omission pointed out by the check post authority and the positive averments made by the petitioner that he has purchased the vehicle from a dealer outside the State of Kerala only for his personal use, in our opinion, no condition need be imposed on the petitioner for the release of the vehicle. 7. In the peculiar facts and circumstances of the case, we allow this writ appeal and direct the check post authority to release the vehicle (JCB Machine) forthwith to the petitioner/appellant. The authority concerned will pass appropriate orders after receiving reply from the petitioner to Ext.P8 notice. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS