IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 27329 of 2009(I) -------------------------- PETITIONER: --------------- TECHNIP KT INDIA LTD., (FORMERLY KNOWN AS KINETICS TECHNOLOGY INDIA LIMITED), C/O. M/S BHARAT PETROLEUM CORPORATION LTD., KOCHIN REFINERY, COCHIN, KERALA. REP.BY IT'S RESIDENT CONSTRUCTION MANAGER (RCM) MR.K.S.CHANDRASEKHARAN PILLAI. BY ADV. SMT.K.LATHA RESPONDENTS: -------------------- 1. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE ASST.COMMISSIONER, WORKS CONTRACT TAX & LT, COMMERCIAL TAXES, ERNAKULAM. 3. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR. BY GOVT. PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 27329 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2009 J U D G M E N T 1. Petitioner is a registered dealer under the provisions of KVAT 2000, as a works contractor. They are executing fabrication works for M/s. Bharat Petroleum Corporation Ltd. at Cochin Refinery. For the purpose of the contract work, the petitioner brought steel fabrication items inter state. The transport effected on the strength of Exts. P2 invoice and P2 (a) delivery challan was intercepted by the 3rd respondent at the boarder check post, Walayar. Ext.P3 notice was issued under the provisions of Section 47 (2) of the KVAT Act demanding payment of security deposit for permitting onward transport. The reason for detention stated in Ext.P3 is that quantity of goods mentioned in the document, especially in the packing list, is found to be 12912 kgs. But on weighment the quantity of goods was found to be only 10960 kgs. Therefore it is found W.P.(C)No. 27329 of 2009 -2- that the document accompanied the transport are not genuine and thereby evasion of payment of tax was suspected. 2. According to the petitioner the goods were brought purely for own use in execution of the works contract and the transport is not pursuant to any inter state purchase nor the goods are intended for any second sale apart from execution of the works contract. It is further pointed out that the quantity of goods on actual verification is found to be lesser than the quantity covered under the documents and hence the apprehension with respect to evasion of payment of tax is untenable. 3. The learned Government Pleader on the other hand contended that the actual quantity of each items described in the packing list could not be verified and discrepancies if any with respect to the quantity of each items has to be checked for arriving at a conclusion as to W.P.(C)No. 27329 of 2009 -3- whether there was any mis-description of the goods or any attempt of evasion of payment of tax. 4. Having considered the rival contentions and facts and circumstances of the case I am of the opinion that the question is whether there was any attempt at evasion of payment of tax need be decided on finalisation of the adjudication under Section 47 (5) & (6) of the KVAT. At the same time continued detention of the goods is not warranted since the petitioner can be permitted to take the goods on furnishing adequate security for the amount demanded under Ext.P3. 5. In the result, the Writ Petition is disposed of directing the 3rd respondent to release the goods along with the vehicle detained under Ext.P3 notice, on the petitioner furnishing Security Bond without sureties, in the form prescribed under the KVAT Rules, for the amount demanded under Ext.P3. The competent authority shall W.P.(C)No. 27329 of 2009 -4- finalise the adjudication proceedings as contemplated under Section 47 (5) & (6) at the earliest, after affording an opportunity of hearing to the petitioner, as early as possible at any rate within a period of two months from the date of release of the goods. C.K. ABDUL REHIM JUDGE shg/