IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 32896 of 2008(N) ----------------------------------------------- PETITIONER(S): ---------------------- 1. T.S.SALUDEEN, AGED 54 YEARS, S/O.SANTHU MOHAMMED, RESIDING AT MINZIA MANZIL, KOZHIKKADA, THATTAMANGALAM, PALAKKAD. 2. K.NILAVARNEESA, AGED 42 YEARS, W/O.T.S.SALUDEEN, RESIDING AT MINZIA MANZIL, KOZHIKKADA, THATTAMANGALAM, PALAKKAD. BY ADV. SRI.T.M.RAMAN KARTHA RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF COMMERCIAL TAXES, GOVENMENT OF KERALA, THIRUVANANTHAPURAM. 2. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES OFFICE, CHITTOOR. 3. COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, VELANTHAVALAM. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 32896 OF 2008 N -------------------------------------- Dated this the 12th November, 2008 JUDGMENT Petitioners challenge Exts.P4 and P4(a). The reliefs sought in the Writ Petition are as follows: “(b) Issue a writ of certiorari quashing Exts.P4 and P4(a) orders issued by the 3rd respondent. (c) Issue a writ of mandamus directing respondents 2 and 3 to refund the amounts of VAT illegally collected from the petitioners by Exts.P5 and P5(a) receipts. (d) Issue a writ of mandamus commanding respondents w and 3 to permit the petitioners to consign/transport Ready Mix Concrete to the State from Coimbatore, on the strength of Purchase Order and tax paid receipts issued by the consignor.” 2. Briefly put, the case of the petitioners is as follows: Petitioners have brought ready mix concrete from WPC.32896/08 N 2 Coimbatore to Thathamangalam in Kerala for their personal use, ie. for construction of non-residential building. Exts.P4 and P4 (a) are issued under Section 47(2) of the KVAT Act. What is stated in Exts.P4 and P4(a) there are no records to establish that the goods were transported for own use and the consignee has not seen registration under KVAT Act and the value shown in the document is very low when compared with the prevailing market rate and hence amount was demanded. The petitioners have remitted the tax as demanded under Exts.P4 and P4(a) and the consignments were released. The prayer pressed by the petitioners is essentially prayer (d). According to petitioners, they seek to consign/transport Ready Mix Concrete from Coimbatore on the strength of purchase order and the tax paid receipts issued by the consignor. Learned counsel for petitioners submits that having regard to the nature of the material, if it is detained, it will cause grave injustice and the WPC.32896/08 N 3 petitioners are prepared to furnish Bank Guarantee, if the goods are detained on the basis of Section 47(2), and it may be permitted to be transported. I heard the learned Government Pleader also. This course is not seriously opposed by him. Accordingly, the Writ Petition is disposed of as follows: The adjudication proceedings pursuant to Exts.P4 and P4 (a) will be completed at the earliest, at any rate, within a period of two months from the date of receipt of a copy of this Judgment. There will be a direction to respondents 2 and 3 to refund the amount of Value Added Tax collected vide Exts.P5 and P5(a) receipts, if the adjudication proceedings pursuant to Exts.P4 and P4(a), are decided in favour of the petitioners. This will be done within two months from the date on which the proceedings are completed. There will be a further direction to respondents 2 and 3 that if the Ready Mix Concrete transported by the petitioners are detained on the basis of notice under Section 47(2) of the Act, upon the petitioners furnishing Bank WPC.32896/08 N 4 Guarantee for the amount demanded therein, the goods will be forthwith released to the petitioners and the proceedings will be completed without any delay. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge