IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 29207 of 2009(U) -------------------------- PETITIONER(S): --------------- BHARATI AIRTEL LIMITED, N.H.BYEPASS, KUNDANOOR JUNCTION, MARADU P.O., COCHIN-682034 AND HAVING ITS WAREHOUSE AT BLDDNG NO.1/292, NEAR A1-AMMEN COLLEGE, EDATHALA, NAD P.O., ALUVA. BY ADV. SRI.A.KUMAR RESPONDENT(S): --------------- THE INTELLIGENCE INSPECTOR, SQUAD NO.II, COMMERCIAL TAXES, PATHANAMTHITTA AT THIRUVALLA. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.29207 OF 2009 ------------------------------ Dated this the 16th day of October, 2009 J U D G M E N T ---------------------- 1. Petitioner is aggrieved by detention of transport of telecommunication equipments, which was intercepted by the respondent on issuing Ext.P2 notice under Section 47(2) of the Kerala Value Added Tax Act, 2003 (KVAT Act). The petitioner is a company incorporated which is engaged in telecommunication service having approval from the Department of Telecommunications, Government of India. The petitioner is setting up towers in various places within the State and for erection of the towers, various equipments are being transported to such different sites. According to the petitioner if the equipments are not found to be in compliance with the technical specifications required, at times they are being returned. The petitioner is having a warehouse at Aluva and such unused equipments are being transported from various sites to the warehouse. The transport in question which is intercepted on 3.10.09 contained goods so transported from various places in Thiruvalla, Pathanamthitta and Kollam Districts. For the above said transport the petitioner had prepared delivery note from its W.P.(C).29207/09-U 2 Ernakulam office and the vehicle number noted therein is KL- 07/G-4020. But according to the petitioner there occurred a break down of the vehicle on 2.10.09 and the materials were shifted to another vehicle bearing Regn:No:KL-04/H-57. It is during the onward transport of the materials in the new vehicle, the respondent had intercepted the transport. 2. On a perusal of Ext.P2 notice the reason for detention of the transport is stated as; (1) The goods vehicle intercepted and checked at Podiyadi on 3.10.09 at 7.35 hrs. The goods transported from Thiruvalla to Ernakulam. The goods transported only on the strength of Departmental Delivery Note No:1442419 dt.2.10.09. On verification of the dept. Delivery note it is found that the date of issue of the delivery note is seen 2.10.09. But the same is signed on 1.10.09. (2) The vehicle number mentioned in Dept. Delivery note is seen KL 07 G 4020. But the goods loaded and transported in the vehicle No:KL 04 H 57. Hence there is very chance to transport another load by using the vehicle No.KL 07 G 4020 and the same document previously. Hence the genuineness of documents produced bonafide of the transport of goods and thereby an attempt of evasion of tax is suspected. Subsequent to interception the petitioner submitted Ext.P3 explanation. The facts and details regarding the transport, including the circumstances under which it was shifted to W.P.(C).29207/09-U 3 another vehicle was explained in detail. In order to prove the history regarding break down of the vehicle the petitioner had also produced certain documents. But the respondent had issued further notice Ext.P6, wherein it is alleged that the vehicle at the place of interception was seen going on the opposite side of the route as suggested by the petitioner. It is further stated that the defects in the documents accompanying transport, raised suspicion that subsequent transport is made using one and the same documents with deliberate intention. Therefore the respondent insisted for payment of security deposit as demanded in Ext.P2. 3. Heard learned counsel for the petitioner and Government Pleader appearing for the respondent. According to the petitioner the transport was genuine and there was absolutely no attempt at evasion of payment of any tax. On the other hand the Government Pleader contended that from the facts and circumstances of the case as well as from the details evident from the documents accompanied the transport, evasion of payment of tax can be suspected. 4. Having considered rival contentions, I am of the opinion that the question as to whether there was any attempt at evasion of payment of tax is a matter which is to be decided on finalisation of the adjudication proceedings. Regarding release W.P.(C).29207/09-U 4 of the goods pending finalisation of such adjudication, the petitioner shall be insisted to furnish proper security. 5. Under the above circumstances the writ petition is disposed of directing the respondent to release the goods detained under Ext.P2 and P6 along with the vehicle, on condition of the petitioner furnishing Bank guarantee for 50% of the amount demanded under Ext.P2 and also on furnishing security bond without sureties in the format provided under the KVAT Rules for the balance 50%. 6. The competent authority under Section 47(5) and (6) of the KVAT Act is directed to expedite the adjudication proceedings and to finalise the same after affording an 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 goods. C.K.ABDUL REHIM, JUDGE. okb