IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No. 36210 of 2008(I) -------------------------- PETITIONER(S): --------------- K.J.THOMASKUTTY, PROPRIETOR, M/S.MODERN ROCK MINING INDUSTRIES, THALACHIRA P.O. KOMPANOLI, VADASSERIKARA, PATHANAMTHITTA. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. INTELLIGENCE OFFICER, SQUAD NO.4, COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 36210 OF 2008 I ```````````````````````````````````````````````````` Dated this the 11th day of December, 2008 J U D G M E N T Petitioner challenges Exts.P10 and P10(a). Ext.P10 is the order passed on the objection filed by the petitioner to Ext.P8 notice. Ext.P10(a) is a notice issued under section 47(2) of the Kerala Value Added Tax Act, 2003. 2. Case of the petitioner in brief is as follows. Petitioner is running a metal crushing unit at Vadasserikkara. For the purpose of excavation activities at his quarry, the petitioner imported a hydraulic excavator through M/s.GMMCO Ltd. from Caterpillar Company at Singapore. A high Seas Sale agreement was executed between the petitioner and M/s.GMMCO Ltd. on 2.8.2008 which is produced as Ext.P1. Petitioner has produced Ext.P2 which is the certificate of origin. Ext.P2(a) is the Bill of Lading and Ext.P3 is the invoice dated 31.10.2008. Ext.P4 is the bill of entry issued by the Customs House at Kolkata. It is the further case of the petitioner that immediately after discharge at the Haldia Port and consequent clearing by the customs, WPC.36210/08 : 2 : M/s.GMMCO Ltd. had arranged transportation of the excavator through M/s.AST Cost Carriers in a big trailer. Ext.P5 is the receipt for the delivery. It is stated that the weight of the excavator is about 21 tones and it cannot run on the roads due to the rugged rollers on which it moves. It is too high and too long to be transported through the normal roads. The petitioner has produced a brochure of the excavator as Ext.P6 in support of his contention. Ext.P7 is produced as the certificate of ownership under Rule 58(18) of the KVAT Rules. It is the further case of the petitioner that the petitioner had earlier purchased an identical excavator and while it was being transported in the trailer, it got stuck at a railway underpass between Thiruvalla and Vadasserikkara. Since such an incident had happened earlier, the petitioner wanted the excavator to be transported to Thiruvananthapuram via Madurai with the intention of transferring the excavator through a smaller trailer available at Thiruvananthapuram. The further case of the petitioner is that the Chennai - Coimbatore - Thiruvananthapuram route was taken by an inadvertent mistake and it is while so, Ext.P8 was issued. The WPC.36210/08 : 3 : petitioner preferred Ext.P9 objection which came to be rejected reiterating the demand for security. Then, Ext.P10(a) is issued revising the value based on Ext.P4 bill of entry. 2. I heard learned counsel for the petitioner Sri.Bechu Kurian Thomas and learned Government Pleader. Learned counsel for the petitioner points out that the excavator was imported for the petitioner's own use in his quarry. He also reiterates his contentions. Learned Government Pleader points out that the vehicle was detained at Attingal which is nearly 100 Km. away from Vadasserikkara and on the way of Thiruvananthapuram. In fact, in Ext.P10 also it is stated that the petitioner's explanation that the route change was inadvertent detour taken by the driver is not convincing enough in the face of the recording in the Lorry Receipt where it has been shown the destination as Thiruvananthapuram. It is submitted by the learned counsel for the petitioner that the petitioner is a registered dealer under the KVAT Act. 3. Having considered the facts, I feel, in the interest of justice, that Ext.P10 should be modified and that the petitioner WPC.36210/08 : 4 : may be called upon to execute bank guarantee for Rs.5 lakhs and on further condition that the petitioner will execute a simple bond without sureties for the balance amount demanded in Ext.P10(a). Ordered accordingly. Further, the petitioner will make available a copy of the registration certificate under the KVAT Act also to the officer. Upon fulfilling these conditions, the goods detained will be released to the petitioner forthwith. The adjudication process will be completed within two months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE