IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 20448 of 2008(H) -------------------------- PETITIONER: ------------ SHAMJITH.T, CHOONDAPURAKKAL, P.O.KOTTOOLI, KOZHIKODE. BY ADV. SRI.B.V.JOY SANKER RESPONDENTS: ------------- 1. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAX DEPARTMENT, KOZHIKODE. 2. CHECK POST INSPECTOR, COMMERCIAL TAX DEPARTMENT, THAMARASSERY, KOZHIKODE. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 20448 OF 2008 H ```````````````````````````````````````````````````` Dated this the 15th day of July, 2008 J U D G M E N T Petitioner challenges Ext.P1. Ext.P1 is a notice issued under section 47(2) of the KVAT Act. It is addressed to M/s.Ever Bright Marbles, Calicut. A security in a sum of Rs.37,500/- is demanded. There is also a notice under section 69 of the Act imposing penalty. Case of the petitioner is as follows. The petitioner is constructing a residential building and he is in need of 3000 sq.ft. tiles. He has purchased the tiles from Andra Pradesh and he entrusted the goods with a transporter for transporting the same to Calicut. According to him, he handed over the purchase bill, Form 16 declaration and he was waiting for the goods. But, the petitioner came to know that the goods were detained at Thamarasserry Check Post for want of necessary documents. According to the petitioner, on enquiry with the driver of the vehicle, it is found that there is another consignment to another person at Calicut and the documents relating to the entire consignment was kept in one cover, and the same was handed WPC.20448/08 : 2 : over by the driver to the check post authorities at Muthanga. It is further stated that the petitioner contacted the 2nd respondent and submitted that he can furnish a copy of the documents of his consignment. But, the 2nd respondent discarded the same. A statement has been filed on behalf of the respondent in which it is, inter alia, stated as follows: “ In the course of vehicle checking on 2.7.2008, the Commercial Tax Inspector, Commercial Tax Check Post, Thamarassery intercepted and checked vehicle No.KA-40/1473 loaded with granite tiles valued Rs.1,07,712/- consigned by M/s.Ever Bright Marble Products, Calicut as per bill No.3/2008-09 dt. 30.6.2008 from Lakshmi Granites, Kurnool, Andra Pradesh. The Commercial Tax Inspector, Commercial Tax Check Post, Thamarassery physically verified the granite tiles in the presence of the driver of the vehicle and it is found that there are 722 square feet granite tiles in the vehicle. Excess quantity comes to 3000 sq.ft. than declared and remitted advance tax at commercial tax check post, Muthanga ie., the boarder check post. The value of excess found granite tiles estimated considering the prevailing market rate, quality and size of the item. Tax due on excess quantity and security deposit was also demanded WPC.20448/08 : 3 : through notice under section 47(2) of the KVAT Act 2003 read with rule 67 from M/s.Ever Bright Marble Products, Calicut. Considering the nature of goods under transport and the goods as per documents are one and same and are indented to the same consignee to whom the goods were transported as per document. Moreover, the person in charge of the goods are not produced any other document to prove that the excess quantity of goods are owned by any other person at the boarder check post or in the check post, Thamarassery. It is pertinent to note that the notices were issued and acknowledged by the driver on 2.7.2008. After the expiry of three days, one Mr.Shamjith T., Calicut submitted a letter saying that the excess quantity of granite tiles were owned by him but he could not submit any other documents before the check post authorities to prove his contentions. In the circumstances it is a clear case of willful attempt of evasion of tax. Petitioner filed the above WP(C) in collation with the consignor M/s.Ever Bright Marble Products, Calicut.” Reply affidavit is filed by the petitioner in which it is stated that the petitioner has purchased 3000 sq.ft. tiles from the very same consignor and produced purchase bill. Learned counsel for WPC.20448/08 : 4 : the petitioner prays that lorry may be released and the adjudicatory process may be directed to be completed at the earliest. 2. I heard learned Government Pleader also. He points out that the petitioner is neither the owner of the lorry nor the person in charge of the lorry and the lorry can be released in accordance with law to the person entitled under section 47(2) of the Act. I record the submission of the learned Government Pleader that the lorry can be released in accordance with law to the person entitled under section 47(2) of the Act. As far as the goods are concerned, it is ordered that the adjudicatory process will be completed at the earliest and at any rate, within three weeks from the date of receipt of a copy of this judgment. Needless to say, it is open to the respondents to retain the goods in accordance with law. I am not expressing any opinion on the cost relating to the unloading of the goods. Writ petition is disposed of as above. (K.M.JOSEPH, JUDGE) aks