IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 16235 of 2008(G) ----------------------------------------------- PETITIONERS: -------------------- 1. K.F. JAMES, S/O. FRANCIS, KATTUPARAMBIL HOUSE, MANNEMPETTA P.O., ALAGAPPA NAGAR, THRISSUR. 2. K.R. MOHANAN, S/O. RAMAKRISHNAN, KADAYIL HOUSE, P.O. KOORKENCHERRY, THRISSUR. 3. K.H. BADARUDEEN, KALAKKAT HOUSE, VELLIKULANGARA, THRISSUR. BY ADV. SRI.K.JAJU BABU RESPONDENTS: ----------------------- 1. THE INTELLIGENCE OFFICER-I, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE), DEPARTMENT OF COMMERCIAL TAXES, THRISSUR-4. 2. THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE), DEPARTMENT OF COMMERCIAL TAXES, THRISSUR-4. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 16235 OF 2008 G -------------------------------------- Dated this the 2nd June, 2008 JUDGMENT Petitioners have approached this Court, seeking a direction to release the pepper detained as per Ext.P4 on payment of the amount of security/penalty as this Court deems just and proper. Petitioners challenge Ext.P4 and seeks a direction to the respondents not to auction the pepper detained as per Ext.P4. 2. Briefly put, the case of the petitioners is as follows: Petitioners booked eightyfour bags of black pepper through Noble Cargo Carrier, an authorised franchisee of Southern Railway to Varanasi. The eightyfour bags of black pepper were collected from small agriculturists of rural areas who are not registered dealers under the Kerala Value Added Tax Act. The first respondent Intelligence Officer detained the goods as per Ext.P4 alleging evasion of tax. According to petitioners, there was no notice issued to them regarding the WPC. 16235/08 G 2 detention. According to them, on getting intimation as evidenced by Ext.P5, they sought release of the goods. Ext.P5 is the communication from the Chief Parcel Supervisor, Thrissur Railway Station to the first respondent Intelligence Officer, stating that certain persons have booked eightyfour bags of pepper detained by the first respondent on 26.4.2008. Learned Government Pleader was directed to get instructions. On instructions, he submits that it is a clear case of smuggling. He further submits that a notice was indeed issued under Section 47 (16) of the Act. It is, inter alia, stated in the notice that on inspection of the Railway Station, Southern Railway, Thrissur on 26.4.2008 at 19.00 hours, it was seen that eightyfour bags of pepper were lying in the Railway Station No.2 platform without any documents prescribed under Section 46(3) of the KVAT Act, 2003. It is thereafter stated that since evasion of tax was suspected, a notice dated 26.4.2008 under Section 47(2) of the Act was affixed in the gunny bags seen in the platform, WPC. 16235/08 G 3 providing an opportunity to the owner of the goods to produce the documents and to prove the bonafide of the transport. It is further stated that no one claimed the ownership nor produced the document4s within the reasonable time. It is also stated that on enquiry it was revealed that no records were kept in the railway parcel office to prove the ownership of the goods. It is further stated that the consignor or consignee of the goods were also not identifiable from the bags. On the basis of this, the first respondent Intelligence Officer took the view that the pepper bags were kept for smuggling out of the State. Accordingly, a notice was published in the Notice Board and the pepper bags were detained by the first respondent by executing a bond in favour of the Station Manager, Southern Railway, Thrissur and under intimation to the Circle Inspector of Railway Protection Force, Thrissur and also to the Chief Parcel Supervisor on 26.4.2008. As per the said notice, objections were called for within seven days as to why the goods shall not be seized and WPC. 16235/08 G 4 confiscated. Learned Government Pleader submits that if the petitioners file objections against the proposal to seize and confiscate the goods, the same will be considered and a decision will be taken in accordance with law. 3. Shri K. Jaju Babu, learned counsel appearing for the petitioners submits that the petitioners are prepared to pay tax as contemplated under the second proviso to Section 49(3) of the Act. He also relies on Ext.P5. All these are matters for the Authority to consider when the petitioners file their objections to the notice dated 26.5.2008. Accordingly, the Writ Petition is disposed of as follows: Petitioners are permitted to file their objections to the Notice under Section 47(16) of the Act within a period of one week from the date of receipt of a copy of this Judgment. The first respondent will consider and take a decision thereon in accordance with law, as early as possible and, at any rate, within two weeks from the date of receipt of the objections, after giving WPC. 16235/08 G 5 an opportunity of being heard to the petitioners also. It is open to the petitioners to raise all their contentions before the first respondent. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge