IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 29545 of 2010(P) -------------------------- PETITIONER(S): --------------- H&R JOHNSON (INDIA), A DIVISION OF PRISM CEMENT LIMITED, 199-A, PLOT NO.34 & 35, WILLINGDON ISLAND, KOCHI-682 003, REPRESENTED BY MR. M.V. UNNIKRISHNAN – AUTHORISED SIGNATORY. BY ADV. SRI.JOSEPH JERARD SAMSON RODRIGUES SRI.ROVIN RODRIGUES RESPONDENT(S): --------------- INTELLIGENCE INSPECTOR, SQUAD NO.IV, DEPT. OF COMMERCIAL TAXES, EDAPPALLY, KOCHI-24. BY G.P. SRI. V.K.SHAMSUDEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 29545 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 24th day of September, 2010 JUDGMENT Petitioner is aggrieved by interception of transport and issuance of Ext.P4 notice under section 47(2) of the Kerala Value Added Tax Act (for short the KVAT Act). 2. According to the petitioner, the goods under transport are vitrified tiles, which was sold to a dealer at Calicut viz., M/s.Kurikkal Tile Centre, Mavoor Road, Calicut, as per invoice dated 31-8-2010. The goods in question was transported from Cochin Port to Kozhikode. The goods were intercepted by the respondent at Vytttila on Bye-pass Road. The reason for detention mentioned in Ext.P4 is that, even though documents like Form 8FA, Bill of Entry, invoice dated 17-8-2010 with respect to import, and advance tax utilization certificate were accompanying the transport, the consignment was not accompanied with the value addition invoice and statutory Delivery Note in Form 15. Since the goods in transport was classified as an evasion prone W.P.(C) No. 29545/2010 2 commodity, it is suspected that the consignor had connived with the consignee to suppress the sale and thereby attempted evasion of payment of tax. 3. Learned counsel for the petitioner asserted that the value addition invoice and delivery note in Form 15 were available along with the transport and that the respondents had refused to accept the same inspite of production. It is pertinent to note that in Ext.P4 notice itself it is mentioned that with respect to another consignment of the petitioner the value added invoice was accompanying. Therefore, contention of the petitioner is that, the petitioner being a reputed company will not effect sale of any items without proper invoices. Since the invoice was drawn few days prior to the transport, delivery note was also issued which contained the number of the invoice, is the contention. It is also stated that in the return submitted by the petitioner proper entry regarding the transaction in question is reflected. 4. Learned Government Pleader appearing for the W.P.(C) No. 29545/2010 3 respondent submitted that it is true that after interception and issuance of Ext.P4 notice, the petitioner had produced invoice as well as delivery note. But both the documents does not contain any endorsement obtained from the Tax Facilitation Centre at Willingdon Island despite the fact that the goods were transported from Cochin Port. Therefore, there is every suspicion that a value added invoice and delivery note was prepared subsequent to the detention. 5. Considering the rival contentions, I am of the opinion that question whether the transport was genuine or not and as to whether there was any attempt of evasion of tax, are matters which need be decided on completion of enquiry under section 47 of the Act. Goods need not be detained pending finalization of such enquiry. It is pointed out by the petitioner that advance tax with respect to the consignment has already been paid. If that be so, I am of the opinion that the goods can be released on the petitioner furnishing security. W.P.(C) No. 29545/2010 4 6. In the result, the writ petition is disposed of directing the respondent to release the goods along with vehicle detained under Ext.P4 notice, on the petitioner furnishing bank guarantee for 50% of the security amount demanded under Ext.P4 and on furnishing a simple bond as provided under the KVAT Rules, without sureties, for the balance amount. 6. The competent authority will expedite the enquiry and finalize the same after affording an opportunity of hearing to the petitioner at the earliest possible, at any rate within a period of two months from the date of release of the goods. C. K. ABDUL REHIM, JUDGE. mn.