IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 15475 of 2010(H) -------------------------- PETITIONER: --------------- M/S.SHRIRAM VALUE SERVICES (P) LTD., ARJUN CENTRE, VIJAYARAGHAVAMENON ROAD, RAVIPURAM, COCHIN-682 016, ERNAKULAM DISTRICT, REPRESENTED BY ITS BRANCH MANAGER, SMT.JAINA JAISON. BY ADV. MR. TOMSON T.EMMANUEL RESPONDENTS: --------------- 1. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR. 2. THE COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 15475 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of May, 2010 JUDGMENT The petitioner is challenging the correctness and sustainability of Ext.P6 notice issued under Section 47 (2) of KVAT Act, whereby the goods brought and transported at the instance of the petitioner in the vehicle bearing No. TN 29 AD 8413 were intercepted and detained at the Commercial Check Post, Walayar by the concerned respondent on 13.05.2010, referring to the defects in the transit, doubting evasion of tax and demanding security deposit to the extent as specified therein. 2. Immediately on serving Ext.P6, the petitioner submitted Ext.P7 reply on the next day, explaining the position, stating that there was no question of any evasion of tax, however, stating that the TIN indicated in Ext,P4 invoice under the Tamil Nadu Act ought to have been omitted to be mentioned in the Tax invoice along with address of the Cochin Branch of the petitioner's firm, by the supplier. This is conceded as an in advertant mistake from the part of the petitioner ( Paragraph 2 of the explanation). It is further stated in paragraph 5 as follows; 5. Immediately on knowledge of the raising of the invoice, we had sent a certificate in Form No. 16 dated 12.05.10 to the supplier. But the despatch clerk without waiting for the receipt of ownership certificate, from us, which is to be W.P. (C) No. 15475 of 2010 : 2 : accompanied with the transport documents, despatched the goods. Now we are producing another ownership certificate to prove that the transport of goods is not for sale in Kerala and which is intended for our own use. In the tax invoice the supplier mentioned the purchase order number and date in the column provided in the invoice. It is also conceded in Writ Petition that, eventhough the petitioner sent Ext.P5 ownership certificate, the consignor inadvertently despatched the furniture before reaching the same in Chennai. 3. Heard the learned Government Pleader as well, who submits on instructions that, the idea and understanding of the petitioner is quite wrong and misconceived. It is brought to the notice of this Court that the mistakes conceded in the explanation as well as in the Writ Petition do not require any further illustration. It is pointed out that Ext.P3 is purely a 'works contract' and that it is not a question of 'simple interstate sale'. It is stipulated in Ext. P3 that the 'contractor' had to satisfy the requirements to the requisite level as specified therein (serial No.1). The reference as to 'fixing' of the various items has been mentioned in serial Nos. 4, 8, 16, 17 etc. Further, under serial No.11. , it is stated that the material has to be supplied as per the design explained 'by you',. Then, under serial No. 13 GYPSUM Board “false ceiling”, is specified to be fixed,. All these elements clearly show that it is a 'Works Contract' and this being the position it cannot W.P. (C) No. 15475 of 2010 : 3 : be treated as a simple inter state sale as contended by the petitioner and that the detention made by the Authorities concerned is very much legal and in conformity with the relevant provisions of law, submits the learned Government Pleader. 4. This Court finds considerable force in the submission made by the learned Government Pleader. However, this Court does not find it necessary to detain the goods any further and that the same can be released to the petitioner on condition that the petitioner satisfies 50% of the liability shown as security deposit in Ext,P6 either in the form of 'cash' or 'bank guarantee' and executes a 'simple bond' for the balance amount; on which event, the goods shall be released to the petitioner forthwith. This will be without prejudice to the rights and interests of the respondents to pursue adjudication proceedings, if any and the same shall be finalized in accordance with law, as expeditiously as possible, at any rate , within a period of two months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd