IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 30TH DAY OF DECEMBER 2011/9TH POUSHA 1933 WPC.No. 35297 of 2011 (J) PETITIONERS : 1. M/S.WIPRO GE HEALTHCARE PVT.LTD. REGD.OFFICE-A-1 GOLDEN ENCLAVE AIRPORT ROAD BANGALORE BRANCH AT PUDUCHERRY AND BRANCH AT 41/400, AMMAN KOVIL ROAD NEAR AMMAN KOVIL TEMPLE COCHIN-682 035, KERALA REP. BY N.V. JAYAN, AUTHORISED SIGNATORY 2. THE SPECIALITY HOSPITAL THANA KANNUR. BY ADV. MR. A.KUMAR RESPONDENTS THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST WALAYAR-678 624. BY SENIOR GOVERNMENT PLEADER MR. S. SUDEESH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(c) NO. 35297 OF 2011 APPENDIX PETITIONERS' EXHIBITS : EXT. P1 : TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 05.07.2007 EXT. P2 : TRUE COPY OF THE PURCHASE ORDER DATED 10.11.2011 EXT. P3 : TRUE COPY OF THE INVOICE DATED 24.12.2011 EXT. P4 : TRUE COPY OF THE FORM 16 DECLARATION DATED 26.12.2011 EXT. P5 : TRUE COPY OF THE NOTICE DATED 29.12.2011 EXT. P6 : TRUE COPY OF THE REPLY DATED 29.12.2011 EXT. P7 : TRUE COPY OF THE NOTICE DATED 04.10.2011 EXT. P8 : TRUE COPY OF THE JUDGMENT IN W.P.(c) NO. 27187 OF 2011 DATED 14.10.2011 EXT. P9 : TRUE COPY OF THE JUDGMENT IN WRIT PETIITON 26975 OF 2011 DATED 13.10.2011 EXT. P10 : A TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO. 19474 OF 2010 DATED 07.07.2010 EXT. P11 : A TRUE COPY OF THE ORDER OF THE DEPUTY COMMISSIONER DATED 06.09.2010 /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P(C) No. 35297 of 2011 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 30th day of December, 2011 JUDGMENT The petitioners are stated as aggrieved of detention of the machinery, more particularly, described as 'C.T. scanner' at the check post, leading to issuance of Ext. P5 notice under Section 47 (2) of the KVAT Act, doubting evasion of tax and demanding security deposit to the extent as stipulated therein. The reasons for detention are as given below: “The consignee is not a registered dealer in Kerala Under KVAT Act 2003. As per purchase order two clauses included 1) price includes cost of the equipment applicable current customs duty/excise duty freight and insurance to site, applicable sales tax, erection commissioning and one year warrantee to the CT 2) Comprehensive AMC including sale @ 14 lakhs with 5 % escalating year after year from previous year amount. Hence elements of supply installation and after service and AMC in this transaction; which attracts tax on works contract. Hence evasion of tax suspected and demanded. 2. The case of the petitioners is, that there is absolutely no rationale on the part of the respondent for having detained the vehicle and the goods, more so when, exactly in respect of similar interception, W.P.(C) No. 35297 of 2011 : 2 : the first petitioner had approached this Court earlier by filing W.P.(C) No. 19474 of 2010, W.P.(C) Nos. 26975 of 2011 and W.P(C) No. 27187 of 2011, when the adjudication proceedings were directed to be finalized, permitting the petitioner to have the goods released, on execution of 'simple bonds'. 3. The learned counsel for the petitioners submits that, pursuant to Ext. P10 judgment, the adjudication proceedings were finalized by the concerned authority, as borne by Ext. P11 order dated 06.09.2010, whereby the contention raised by the petitioner was accepted and the security deposit has been released. In spite of the said proceedings, the respondent continued to pursue similar course and events, which made the first petitioner and another to approach this Court again, in respect of another transaction, by filing W.P.(C) No. 27187 of 2011, which was disposed of, as per Ext. P8 judgment directing the adjudicating authority to have the proceedings finalized, however, enabling the petitioners to have the goods released on execution of a 'simple bond'. It is stated that the adjudication proceedings are still pending. In spite of bringing the above factual position to the notice of the respondent, the goods brought by the petitioners have been W.P.(C) No. 35297 of 2011 : 3 : detained as per Ext. P5, which in turn is under challenge in this writ petition. 4. Heard the learned Government Pleader as well, who submits that, there is some difference in the present transaction. The learned Government Pleader refers to Ext. P2, wherein it is stipulated that the price includes cost of the equipment, applicable current customs duty/excise duty, freight and insurance to site, applicable sales tax, erection, commissioning and one year warranty for the C.T., which inevitably includes the element of 'work contract' as well, which is taxable. It is further submitted that the second petitioner is not a registered dealer. 5. The learned counsel for the petitioner further submits that the transaction was exactly similar as in the earlier case and that the adjudicating authority itself got satisfied over the same, which has resulted in Ext. P11 order. As such, the fate of the present case also cannot be something else; submits the learned counsel. 6. After considering the materials on record and also after hearing both the sides, this Court finds that the matter, in view of the disputed questions of facts, however, has to be finalized by the W.P.(C) No. 35297 of 2011 : 4 : adjudicating authority. But it is not required to have the goods retained till the adjudication proceedings are over. In the said circumstances, this Court finds it fit and proper to have the goods released, on executing a 'simple bond' by both the petitioners, as already ordered by this Court vide Exts. P8, P9 and P10. It is ordered accordingly. The respondent is directed to cause the adjudication proceedings to be finalized in accordance with law, as expeditiously as possible, at any rate, within two months from the date receipt of a copy of this judgment. The Writ Petition is disposed of. Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd