IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 29083 of 2008(K) -------------------------------------+-------- PETITIONER: ------------------ M/S.BALAJI TRADING CO., 124/B, BHARATHI LANE ROAD, P.N.PALAYAM, COIMBATORE - 641 037. REPRESENTED BY ITS SALES MANAGER, MR.MUKESH. BY ADV. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): ------------------------- 1. THE INTELLIGENCE INSPECTOR, INTELLIGENCE SQUAD NO.VI, DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD. 2. THE INTELLIGENCE OFFICER, INTELLIGENCE SQUAD NO.VI, DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD. 3. THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE), DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 29083 OF 2008 K -------------------------------------- Dated this the 16th October, 2008 JUDGMENT Petitioner challenges Exts.P2 and P3 notices and seeks a direction to release the goods so as to take the goods and vehicle to destination without collecting any security amount as demanded in Exts.P2 and P3 or in the alternative to take it back to the original place in view of the withdrawal of the intending purchaser from its offer. 2. Briefly put, the case of the petitioner is as follows: Petitioner is a Concern registered under the Tamilnadu Value Added Tax Act and Central Sales Tax Act. Petitioner purchased a consignment of pan masala from Hyderabad and on receipt of an enquiry from Aluva, from M/s. Travancore Solvents and Oils, the petitioner Concern hired a vehicle and despatched the consignment. The intended consignee M/s. Travancore Solvents and Oils, Aluva is also registered. The goods came to be detained and Ext.P2 notice was issued. The WPC. 29083/08 K 2 objection is as follows: “The vehicle with goods have been handed over by the CTI, CTCP, Velanthavalam. On inspection, the vehicle contained 160 bags of pan masala (Gutka) (2) The consignee is not a registered dealer under KVAT Act and CST Act. On verification, 160 bags of Gutka each contain 19080 pieces. Value fairly and reasonably estimated at Rs.30,52,800/=. Hence SD demanded for the estimated value. SD Rs.7,63,200/= Cess Rs.7,632/=. As the driver did not disclose the actual destination of the consignment and about the value, freight and insurance charge of the vehicle and goods and found in collusion for the carrying of the goods, notice u/s.47(3) of the KVAT Act also issued.” 3. Notice was also issued under Section 47(3) of the KVAT Act. Allegation is that there is no registration both under the KVAT Act and the CST Act for the consignee. A Counter Affidavit is also filed in the matter. In the Counter Affidavit, Exts.R1(a) to R1(d) documents are produced. 4. The only request made by the learned counsel for WPC. 29083/08 K 3 petitioner is that the consignee having backed out, the goods may be permitted to be taken back. This is resisted by the learned Government Pleader. In this case, the name of the consignee in the first place was shown as “Travancore Solven, Paravoor Kavala, Aluva”. It is found that there is no assessee as shown in Ext.P2 and the tin number is also not mentioned. Therefore, the consignee stated in the Writ petition is not the consignee shown in the Bill. Further, it is stated that a perusal of Ext.P2 would show that security is demanded on the basis that there is gross under-valuation. In fact, it is pointed out by the learned Government Pleader that though the MRP is for Rs.1.50, they have taken value at Rs.1/=. In such a case as this where both the name of the consigneee which is shown is one which is non-existent, the tin number is not shown and according to the Government Pleader, the name of the product is also not correctly shown as what is shown is M-raw-material when the actual product is not a raw-material, but it is pan masala, I would think that in the facts of this case, it would not be open to the petitioner to request the goods to be taken back. WPC. 29083/08 K 4 Counsel for petitioner took me through the definition of “Sale” and Sections 6 and 46(3) pointing out that there was no sale. Prima facie, I would not think that such a contention would lie, having regard to the materials available including the averments in the Writ Petition and also Ext.R1(a). It may be true that in some cases this Court had permitted to take back the goods. But, I would think, at any rate, that there cannot be an absolute right to claim to take back the goods. Without prejudice to the right of the petitioner to raise all the contentions available, before the Authorities against the proceedings, I would think that this is not an appropriate case, at any rate, under Article 226 to permit the petitioner to take back the goods as claimed by the petitioner. Consequently, the Writ Petition is dismissed without prejudice to the right of the petitioner to urge all the contentions available in law before the Authorities. K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge