IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 34288 of 2010(I) ------------------------------------ PETITIONER(S): ---------------------- R B G ENTERPROSES (PVT) LTD., REGD. OFFICE VI/93, JEW TOWN, KOCHI-682 002 REPRESENTED BY ITS MANAGING DIRECTOR MR. RAJ KUMAR GUPTA, S/O RADHA BALLABH GUPTA. BY ADV. SRI.S.SUDHISH KUMAR RESPONDENT(S): ------------------------- THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR REPRESENTED BY THE GOVERNMENT PLEADER HIGH COURT OF KERALA, ERNAKULAM. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 34288 of 2010 --------------------------------- Dated this the 15th day of November, 2010 JUDGMENT Petitioner is a company incorporated having its registered office at Cochin. Petitioner is engaged in the business of providing Ware house for different customers as a part of their business activity. They are constructing a Warehouse at Keezhmad near Aluva for which they have obtained necessary building permit from the local authority as evidenced from Ext.P2, and consent from the Kerala State Pollution Control Board as per Ext.P3. Petitioner is having registration under the provisions of the Central Excise Act as evidenced from Ext.P1. 2. The issue involved in this writ petition pertains to detention of pre-engineered Iron structures and fittings transported from Pune. The goods in question was purchased by the petitioner by virtue of Ext.P5 order placed . The transport was accompanied by Ext.P6 invoice and Ext.P7 packing list. On interception of the goods the respondent had issued Ext.P8 notice under section 47 (2) of the KVAT Act. The reason for detention WP(C).No.34288/2010 2 mentioned therein is that the consignor is not a registered dealer and the invoice as well as Form 16 declaration which accompanied the transport does not mention about the purpose for which the goods were transported. Hence genuineness of the transport was suspected and alleging evasion of payment of tax, security depeosit was demanded. 3. According to the petitioner, on receipt of Ext.P8 they submitted explanation and produced all documents in support thereof. But the respondent had further issued notice Ext.P10 mentioning the reason that materials under transport is used for erection of building structures, which will form part of the works contract, and the same is liable to be taxed under the provisions KVAT Act. It is evident from Ext.P11, copy of Form 16 declaration, that it is specifically stated therein that items were transported not for sale. it is further submitted that from the building permit as well as approved plan it is evident that the petitioner is constructing a Ware house and the fabricated structures are transported only for own use, for the construction of the ware house. 4. Learned Government Pleader appearing for the WP(C).No.34288/2010 3 respondents had pointed out that in column No. 7 of Form 16 Declaration of ownership, the purpose for which the goods are transported was left blank and it was reasonably suspected that the goods in question were transported for execution of some contract work. It is also stated that the building plan as well as permit were not accompanying the transport. 5. The question whether there was proper documents accompanying the transport and as to whether there was any attempt at evasion of payment of tax are matters which need be decided on finalisation of the adjudication contemplated under section 47. From the facts and circumstances I am inclined to order release of the consignment pending finalisation of the enquiry on the petitioner furnishing proper security for the value demandeed under the notice . 6. In the result, the writ petition is disposed of directing the respondent to release the goods along with the vehicle detained under Exts.P8 and P10 notices on the petitioner or consignor furnishing Bank Guarantee for the value of Security Deposit demanded under those notices. 7 . The competent authority under section 47 is directed to WP(C).No.34288/2010 4 finalise the enquiry after affording an opportunity of hearing to the petitioner, as early as possible, at any rate, within a period of six weeks from the date of release of the goods. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).No.34288/2010 5