IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 28991 of 2009(T) -------------------------- PETITIONER: --------------- TATA TELESERVICES LIMITED, S.L.PLAZA, PALARIVATTOM, COCHIN AND WAREHOUSE AT C/O.KAVERI WAREHOUSING PVT.LTD., XL/66A MEZ IMPEX ETTEKAR, NORTH EDATHALA P.O., CHOONDI, ALUVA REPRESENTED BY ITS AUTHORISED REPRESENTATIVE. BY ADV. SRI.A.KUMAR RESPONDENT: --------------- THE INTELLIGENCE INSPECTOR, INTELLIGENCE SQUAD NO.V, COMMERCIAL TAXES, PALAKKAD, CAMP AT WALAYAR, PALAKKAD. BY GOVT. PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 28991 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2009 J U D G M E N T 1. Petitioner is a Telecommunication service provider, licensed by the Department of Telecommunication, Government of India. Petitioner is a registered dealer under the provisions of the KVAT Act. Grievance of the petitioner is against detention of goods transported from Chennai in Tamil Nadu to the wearhouse of the petitioner at Aluva within the State. According to the petitioner the goods under transport are telecommunication equipments imported from abroad, which are cleared from the port of Chennai. It is submitted that the goods were cleared on payment of customs duty, through the Clearing and Forwarding Agent authorised by the petitioner and the goods were carried by road to the wearhouse of the petitioner within the State of Kerala. The transport was accompanied by declaration in “Form KK” in original as W.P.(C)No. 28991 of 2009 -2- prescribed under the TNGST Rules. Further, the consignment was also accompanied by a declaration of the clearing and forwarding agency and it was supported by documents like Bill of Lading, Invoice/Packing List, copy of customs Bill of Entry, TR6 Challan etc. It is further submitted that the goods were already cleared at the boarder check post while entering into the state of Kerala. But the respondent intercepted the vehicle and detained the goods on issuing Ext.P9 Notice, under Section 47 (2) of the KVACT Act. The reason for detention mentioned in Ext.P9 is that the goods are transported using photocopies of the documents and that the consignor or consignee has not issued any documents for transport of the goods. Therefore it is suspected that the consignment may be a repeated transportation effected using the photocopies of the original documents. It is also alleged that the copy of the documents were not attested either by consignor or consignee. W.P.(C)No. 28991 of 2009 -3- 2. According to the petitioner the goods are imported equipments and the documents accompanied the transport clearly revealed that it was cleared from the Port of Chennai after paying customs duty. It is further submitted that the description of the goods mentioned in the documents are strictly tallying with the goods under transport. Therefore the apprehension expressed in regard is totally baseless. It is further submitted that the petitioner is a registered dealer regularly paying tax. 3. The Government Pleader on the other hand contended that the documents accompanied the transport are mere photocopies without any authentication and attempt at evasion of payment of tax by effecting repeated transport can reasonably be suspected. 4. Having considered rival contentions and facts and circumstances of the case, I am of the opinion that the question whether there was any attempt at evasion of payment of tax is a matter need be decided on finalisation of the adjudication, under Section 47 (5) & (6) of the KVAT W.P.(C)No. 28991 of 2009 -4- Act. However there is evidence to the effect that the goods are imported materials cleared from the Port of Chennai on payment of customs duty. It is further noticed that the declaration as prescribed under the TNGST Rules was accompanying the transport. It is also evident that the petitioner is a registered dealer engaged in the business providing telecommunication service and the equipments under transport are imported equipments intended to be used by the petitioner. Therefore I am of the opinion that the continued detention of the goods till the finalisation of the adjudication proceedings is not warranted and the goods can be released on the petitioner furnishing proper security for the amount demanded under Ext.P9. 5. In the result, the Writ Petition is disposed of directing the respondent to release the goods along with the vehicle detained under Ext.P9, on the petitioner furnishing Security Bond without sureties, in the form prescribed under the KVAT Rules, for the value of security deposit demanded under Ext.P9. W.P.(C)No. 28991 of 2009 -5- 6. The competent authorities under Section 47 (5) & (6) shall finalise the adjudication proceedings at the earliest, after affording opportunity to the petitioner, at any rate within a period of two months from the date of release of the goods. C.K. ABDUL REHIM JUDGE shg/