IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 16110 of 2011(K) -------------------------- PETITIONER(S): ------------------------ PAREETH, 34, KUNNATHAN, 5, KOTTAPPADY, KOTHAMANGALAM-686 695. BY ADV. SRI.S.ABU BAKER KUNJU SRI.P.D.BROONO SRI.P.T.JOSEPH (PANJIKARAN) RESPONDENT(S): ------------------------- 1. THE INTELLIGENCE INSPECTOR, SQUAD NO.V, DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY AT KARUKUTTY-683 576. 2. THE INTELLIGENCE OFFICER, SQUAD NO.V, DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY AT KARUKUTTY-683 576. BY GOVERNMENT PLEADER SRI.V.K. SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.16110 OF 2011 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE TAX INVOICE No.9005183 DATED 31.5.2011 OF HYUNDAI CONSTRUCITON EQUIPMENT INDIA PVT. LTD. CHENNAI. EXHIBIT P2 : TRUE COPY OF THE DELIVERY CHECK REPORT 7.6.2011 DECLARED AT THE CTCP WALAYAR. EXHIBIT P3 : TRUE COPY OF THE FORM KK No.07325 DATED 7.6.2011 OF INTERFREIGHT SERVICES PVT. LTD.. EXHIBIT P4 : TRUE COPY OF THE NOTICE NO. OR. DATED 12.6.2011 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE. C.K.ABDUL REHIM, J ----------------------------------------- W.P.(C) NO.16110 OF 2011 ---------------------------------------- Dated this the 16th day of June, 2011. JUDGMENT Contention of the petitioner is that the machinery under detention was purchased by him on the basis of Ext.P1 tax invoice by paying CST at 2%, on the strength of 'C' Form and it was brought to state on 7.6.2011 by declaring in the border check post, as evidenced from Ext.P2 and P3. It is contended that the machinery is a capital goods, which has already been acquired by the petitioner and there is no necessity for any document to accompany with movement of such goods. Hence it is contended that the proceedings initiated under Section 47(2) is unsustainable. 2. Learned Government Pleader appearing on behalf of respondents pointed out that, at the time of interception there was no documents to show that the machinery belongs to the petitioner. On the other hand, it is stated that the driver of the vehicle had given a statement to the effect that the machinery was transported from M/s. Kunnatham Poymers, Odakkali to W.P.(C) NO.16110 OF 2011 2 Chirangara Estate in Pathanamthitta district. It is further contended that there is no evidence to prove that the machinery detained is the very same machinery purchased by the petitioner and transported to the state by virtue of Ext.P1 to P3 documents. It is further stated that suspicion expressed by the detaining authority with respect to sale of the machinery within the state is reasonable. It is also pointed out that the time of detention is at 9.30 PM and the stand taken by the petitioner in the objection filed to the effect that the machinery was taken for repairs at Muvatupuzha could not be accepted. 3. I am of the view that, whether there was any attempt in evasion of payment of tax is a matter need to be decided on finalizing the enquiry as contemplated under Section 47(5) and (6). It is discernible from Ext.P1 to P3 produced by the petitioners that the petitioner is the owner of the machinery and that the same was purchased as a capital goods. It is further noticed that the petitioner is a registered dealer under the provisions of the KVAT and CST W.P.(C) NO.16110 OF 2011 3 Act and under such circumstance, I am of the view that the detention of the goods need not be continued till the finalization of the enquiry provided the petitioner furnishes adequate security. 4. Hence the writ petition is disposed of directing the respondents to release the goods along with the vehicle which is detained by virtue of Ext.P4 notice, on the petitioner furnishing security bond for the value of deposit demanded thereunder, in the form prescribed under the KVAT Rules without sureties. 5. The petitioner will also file an undertaking in the form of an affidavit to the effect that he will not part with ownership and possession of the machinery in question till finalization of the enquiry. The petitioner will also produce photo copies of title deeds and tax receipts with respect to immovable property if any owned and possessed by him. 6. The competent authority under Section 47(5) and (6) will finalize the enquiry, after release of the detention, at the earliest, after affording a reasonable opportunity of hearing W.P.(C) NO.16110 OF 2011 4 to the petitioner, at any rate within one month from the date of release of the detention. C.K.ABDUL REHIM, JUDGE mns