IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 7205 of 2010(A) ------------------------- PETITIONER(S): --------------- M/S.SUN DIRECT TV (P) LTD, 7TH FLOOR, TRANS ASIA CORPORATE PARK, SEA PORT-AIRPORT ROAD, KAKKANAD, COCHIN - 37, REPRESENTED BY IT'S ZONAL MANAGER MR.C.S.PURUSHOTHAMAN. BY ADV. SMT.K.LATHA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO MINISTRY OF FINANCE, GOVERNMENT OF SECRETARIAT, TRIVANDRUM. 2. INTELLIGENCE INSPECTOR, SQUAD NO.V, COMMERCIAL TAXES, MALAPPURAM. 3. THE COMMERCIAL TAX OFFICER, KVAT CIRCLE-II, THRIPUNITHURA, ERNAKULAM. 4. COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) No. 7205 of 2010 --------------------------------------- Dated, this the 8th day of March, 2010 J U D G M E N T The petitioner is before this Court challenging the sustainability of the detention of the goods transported by the petitioner vide Exts.P7 and P7(a), issued under Section 47 (2) of the Kerala Value Added Tax Act suspecting evasion of tax and demanding security deposit to the extent as specified therein. 2. The learned counsel for the petitioner submits that the course being pursued by the respondent is only to harass the petitioner to the maximum possible extent and without any regard to the actual facts and figures. The case of the petitioner is that absolutely no sale is involved by virtue of the very nature of the transaction and that the ownership over the goods is never intended to be transferred to the customers, but for the right to use the same; thus providing necessary facility, which will attract only an instance of service and not a sale. 3. The learned Government Pleader appearing for the respondents submits on instructions, that even going by the materials on record, the case put forth by the petitioner that the transfer of goods is only by way of 'stock register' cannot be accepted, for the obvious reason that, in Ext.P1 WP(C) No.7205/2010 2 certificate of registration, against column No. 3 as to the details of branches, the petitioner has made an entry as 'nil'. Similarly, with regard to the column No. 4, the particulars of the godowns have been shown as 'nil'. That apart, in Ext.P5 delivery note, against column No. 4, time of commencement of journey is consciously left blank. Further, against column No. 11, the signature does not bear the 'date' and all these incriminating circumstances are quite adequate to sustain the course pursued by the respondents issuing Exts.P7/P7(a) detaining the vehicle as well as the goods suspecting evasion of tax and demanding security deposit; submits the learned Government Pleader. 4. The learned counsel for the petitioner submits that the non declaration of the above particulars in Ext.P1 certificate of registration is not fatal, in so far as all such 'stock points' have been declared subsequently and Ext.P1 was sought to be corrected/amended as discernible from the second page of very same document. It is also the case of the petitioner, that there was no sufficient space in the said certificate and hence necessary certificates were being added on, showing the 'stock points' as borne by Ext.P2 series. It is further stated that the position has been brought to the notice of the 3rd respondent as well, who is the assessing authority of the petitioner, who has issued Ext.P8 certificate showing that the petitioner has got additional 'stock points' as mentioned therein and hence that the conveyances forming the subject matter of Exts.P7/P7(a) are very much in WP(C) No.7205/2010 3 respect of the destination as mentioned in Ext.P8. 5. The learned Government Pleader however rebuts the averments and allegations and also as to the legal position, particularly as to the instance of 'sale' as defined under Section 2 (xIiii) of the Kerala Value Added Tax Act. It is also brought to the notice of this Court that somewhat similar issue, as to the basic nature of the transaction, is pending consideration before the Tribunal. 6. Considering the facts and circumstances, this Court finds that the goods being transported by the petitioner however need not be detained at the check post and that the same can be released on condition that the petitioner furnishes ‘Bank Guarantee’ to an extent of 50% of the Security Deposit shown in Ext.P7/P7(a) and also provides sufficient security for the balance amount. On satisfying the said requirement, the vehicle/goods detained by Ext.P7/P7(a) shall be released to the petitioner forthwith. This will be without prejudice to the right of the respondents to pursue the adjudication proceedings; which shall be finalized as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON JUDGE dnc