IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 27760 of 2009(L) ---------------------------------------- PETITIONER(S): ------------------------- 1. ESSAR TELECOM INFRASTRUCTURES(P)LTD. HAVING ITS REGISTERED OFFICE AT ESSAR HOUSE, II, K.K.MARG, MAHALAKSHMI, MUMBAI 400 034 AND HAVING ITS BRANCH OFFICE AT 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE,SHENOY ROAD, KALOOR,COCHIN - 17, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER BABU PATTATHANAM, S/O. M.CHANDRAN, AGED 31 YEARS. 2. KUNHAMED HAJI, S/O.MR.POKKAR HAJI, RESIDING AT KOLLIYIL HOUSE, VALLOD P.O., WYNAD. BY ADV. MR.T.MADHU RESPONDENT(S): ---------------------------- THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, MUTHANGA, WYNAD DISTRICT. BY GOVERNMENT PLEADER MR. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 27760 of 2009 --------------------------------- Dated this the 5th day of October, 2009 JUDGMENT The first petitioner is a company engaged in the business of providing Telecom services. The second petitioner is the owner of the property wherein the first petitioner had entered into an agreement erect a 'Telecom Tower', as per Ext.P1. Grievance of the petitioners is that respondent had intercepted and detained transport of a consignment “ Telecom Tower parts” brought by the first petitioner by way of branch transfer from their branch at Orissa to the State of Kerala. Ext.P3 is the notice issued on interception. The reason for detention noted in Ext.P3 is that all the documents accompanied the transport showed that the consignee is the second petitioner. But there is no document accompanied to prove that the second petitioner has no liability to pay tax under the provisions of the KVAT Act. 2. According to the petitioners the goods were intended to be transported to the premises of the second petitioner wherein Telecom Tower was proposed to be erected. But the goods was WP(C)27760/09 2 transported by way of branch transfer from Orissa branch of the first petitioner. The mistake in preparing the documents accompanied the transport, in the name of the second petitioner, was only a bonafide error. 2. The question whether there was any attempt at evasion of payment of tax pertaining to the transport is a matter which is to be decided on completion of the process of adjudication as contemplated under section 47 of the KVAT Act. It is not proper for this court to enter on the merits and to arrive at a finding at this stage. However I am of the opinion that the consignment need not be detained till finalisation of the adjudication and the petitioners can be permitted to get release of the goods on furnishing proper security for the value demanded under Ext.P3. 3. Under the above circumstances the writ petition is disposed of directing the respondent to release the goods along with the vehicle detained under Ext.P3 notice, on the petitioners furnishing bank guarantee for the amount of security deposit demanded thereunder. The competent authority under section 47(5) and (6) of the KVAT Act is directed to expedite the adjudication proceedings and to complete the same as early as WP(C)27760/09 3 possible at any rate within two months from the date of release of the goods. C.K.ABDUL REHIM,JUDGE pmn/