IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 31104 of 2009(G) -------------------------- PETITIONER(S): --------------- M/S.KHAITAN ELECTRICALS LIMITED, VI/809,VALLATHOL JUNCTION, SEA PORT-AIR PORT ROAD, THRIKKAKARA P.O.,NEAR SUBARBAN CLUB, COCHIN-682 021-REPRESENTED BY ITS COMMERCIAL MANAGER,C.RAJAPPAN. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST,WALAYAR. 2. THE ASSISTANT COMMISSIONER (ASSMT), COMMERCIAL TAXES,SPECIAL CIRCLE-II,ERNAKULAM. 3. THE COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAXES,THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.31104 OF 2009 ------------------------------ Dated this the 3rd day of November, 2009 J U D G M E N T ---------------------- 1. Petitioner is aggrieved by detention of a consignment of imported Fans transported on stock transfer basis. According to the petitioner the goods, which are Fans imported from China, was transported from the petitioner's branch at Calcutta to their branch at Cochin. The transport was accompanied by 'stock transfer invoice' and 'way bill' issued by the transporter, copy of which are produced as Ext.P2 and P3. The transport was intercepted by the 1st respondent on issuing Ext.P4 notice under Section 47(2) of the Kerala Value Added Tax Act, 2003 (KVAT Act). Reason for detention mentioned in Ext.P4 is that the excise invoice number was not mentioned in the stock transfer note and the transportation was not accompanied by departmental delivery note of the concerned state or way bill. Therefore attempt at evasion of payment of tax was suspected. 2. According to the petitioner the stock transfer invoice, which is produced as Ext.P2, has clearly mentioned about payment of excise duty and it contained the particulars like Lorry number, Chasis number, Engine number, etc: It is further W.P.(C).31104/09-G 2 pointed out that Ext.P3 is the way bill which was accompanying the transport, and it is evident that Ext.P3 contains seal of the border check post. It is further submitted that delivery note is not a mandatory document to be accompanied along with the transport because the goods in question are not notified items. As per Section 46(3)(a) of the KVAT Act either invoice or delivery note or certificate of ownership alone is required. In this case since there was a stock transfer invoice and way bill accompanying the transport, the requirement was satisfied, is the contention. It is submitted that the petitioner is a registered dealer who is regularly paying tax and the transport was made on stock transfer basis which is a bonafide transport and there was no attempt for evasion of payment of tax. 3. Heard counsel for the petitioner and Government Pleader appearing for the respondents. Having considered the reason for detention mentioned in Ext.P4, and on taking note of the fact that the petitioner is a registered dealer, I am of the opinion that the detention of goods pending finalisation of the adjudication is not warranted and hence direction can be issued for release of the goods on the petitioner furnishing proper security. 4. In the result the writ petition is disposed of directing the 1st respondent to release the goods along with the vehicle W.P.(C).31104/09-G 3 detained under Ext.P4 on the petitioner furnishing security bond in the form provided under the KVAT Rules for the value of the amount demanded under Ext.P4, without sureties. 5. The competent authority under Section 47(5) and (6) is directed to expedite the adjudication proceedings and to finalise the same after affording an opportunity 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. okb