IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 25824 of 2009(W) ------------------------------------------ PETITIONER(S): ------------------------- SAINT GOBAIN INDIA LIMITED, PLOT NO.A-1, SIPCOT INDUSTRIAL PARK, SRIPERUMBUDUR-602 105, REPRESENTED BY ITS AREA MANAGER, RAMESH.V.B, AGED 30 YEARS, SON OF V.K.BALAKRISHNAN NAIR. BY ADVS. MR.ANIL S.RAJ, SMT.RAJANI K.N., SMT.P.RADHIKA RAJASEKHARAN, SMT.ANILA PETER. RESPONDENT(S): ---------------------------- THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAXES CHECK POST, WALAYAR. BY GOVERNMENT PLEADER MR. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2009 ALONG WITH WPC.NO.25838 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 25824 & 25838 of 2009 --------------------------------- Dated this the 16th day of September, 2009 JUDGMENT The challenge in these writ petitions is against the detention of goods transported by the petitioner demanding payment of advance tax. 2. In WPC.No.25824/2009 the petitioner has effected inter- State transport of “float glass” under Exts.P1 and P2 series invoices. The transport was intercepted at the Commercial Taxes Check Post at Walayar on issuing Exts.P3 and P4 notices, demanding payment of Advance Tax as per value shown in the invoices. According to the petitioner, there was a mistake crept in while preparing the invoices with respect to value of goods and hence they had approached the authorities at the check post to accept the corrected invoices. But the authority concerned has not permitted replacement of the invoices by corrected ones. As things stands now it is the case of the petitioner that the consignee has refused to accept the goods and therefore through Exts.P7 and P8 the petitioner had requested to permit them to WP(C).25824/2009 & 25838/09 2 take back the goods to Tamil Nadu. 3. In a similar situation goods transported under Ext.P1 series invoices in WPC.No.25838/2009 was also detained, at the Commercial Taxes Check Post at Aryankavu, and notice was issued demanding payment of advance tax. There also the consignee had refused to accept the goods and therefore Ext.P3 request was submitted to the respondent seeking permission to take back the goods. 4. In the statement filed on behalf of the respondent in both the cases it is averred that the goods under consignment attracts payment of Advance Tax and hence the goods can be released only on paying Advance Tax as per the demand. It is stated that glass is a commodity where attempt at evasion of tax is highly prone, and therefore the contention of the petitioner that higher sale price was invoiced due to an error cannot be accepted. Further it is stated that if the consignor wants to take back the goods, it can be done only as per procedure under the Act and Rules, by issuing Form No.9 credit note as provided under section 41 of the KVAT Act. 5. Having considered the rival contentions I am of the WP(C).25824/2009 & 25838/09 3 opinion that since detention is at the check post the goods cannot be considered as entered the state, and since the consignor is not ready to make payment of the Advance Tax, it can be permitted to transport back. The liability for payment of tax attracted only if inter-state sale is effected and in this case the request is to take back the goods without the sale being materialised. Hence I find no reasonable objection against the consignor taking back the goods to the State of Tamil Nadu. Under the above circumstances, the writ petition is disposed of directing the respondent in both the cases to permit the petitioner to take back the goods detained under the invoices to the State of Tamil Nadu. The transport of the goods back to the State of Tamil Nadu shall be permitted forthwith on production of this judgment. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).25824/2009 & 25838/09 4