IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 WP(C).No. 14602 of 2008(L) -------------------------- PETITIONER: ------------------ JYOTHY LABORATORIES LTD., KADANASSERRY P.O., TRISSUR DISTRICT. REPRESENTED BY ITS AUTHORISED SIGNATORY T.V.THILAKAN, SR.ACCOUNTS OFFICER, JYOTHY LABORATORIES LTD. BY ADV. SRI.SHAJI THOMAS PORKKATTIL RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, COMMERCIAL TAXES, GOVT.OF KERALA, THIRUVANANTHAPURAM. 2. COMMISSIONER OF COMMERCIAL TAXES, DEPT.OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY SPL. GOVT. PLEADER FOR TAXES SRI. VINOD CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 14602 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2008 JUDGMENT Case of the petitioner in brief is as follows: The petitioner owns the brand name 'Ujala Supreme' and it is selling 'Ujala Stiff & Shine'. Petitioner is registered under the Kerala Value Added Tax Act. It has paid 4% tax on the above products. Ext.P1 is the order passed by the second respondent on the basis of an application filed by M/s. M.P.Agencies, which is a registered dealer of the petitioner. Therein it is stated that the rate of tax is 12.5%. The said order came to be set aside by Ext.P2 judgment. Thereafter, again an order was passed by the second respondent clarifying that the rate of tax is 12.5%. Thereafter, aggrieved by the second order, the dealer of the petitioner again preferred O.T.A. 9 of 2007, which has been admitted by this court and notice has been issued. Appeal remains in the list for final hearing as item No.401 and it remained so till 31.3.2008. However, the appeal was not finally disposed of for want time. 2. The grievance of the petitioner is that the product of the petitioner, namely, diluted Acid Violet Paste (AVP) under the brand name of Ujala Supreme and diluted Poly-viyl Acetate (PVA) under the brand WPC. 14602/2008. 2 name Ujala Stiff and Shine are not allowed to be sold by the second respondent and the vehicles transporting the aforementioned goods are unnecessarily detained at sales tax check posts on the ground that petitioner paid tax only at 4% for the goods. Petitioner has produced Exts.P3 to P7, which are notices issued by the Intelligence Officer. The petitioner contacted the officers of the second respondent and produced Ext.P2 judgment and that it was brought to the notice of the authority that the issue is pending consideration in O.T.A. 9 of 2007 and requested them to allow the petitioner to transport the goods and to release the vehicles detained at the commercial check post without compelling them to remit the amount. However, the petitioner was compelled to remit the amount under Ext.P8 series. It is the case of the petitioner that if ultimately this court takes the view that the products are taxable at 12.5% and not 4%, the petitioner shall pay the differential rate of tax. On the other hand if the company collects 12.5% from its purchasers and ultimately the court allowed O.T.A.9 of 2007, the Company cannot claim refund of tax already collected from its purchasers and remitted to the Government. The Company is stated to be well reputed company having registration under the KVAT Act. With these allegations the petitioner has approached this court seeking writ of mandamus directing the second respondent and his officers not to detain the WPC. 14602/2008. 3 vehicles transporting Ujala Supreme and Ujala Stiff and Shine at commercial check post till the disposal of OTA. 9 of 2007 by this court. 3. I heard learned counsel for the petitioner Sri.Shaji Thomas and also the learned Special Government Pleader for Taxes Sri. Vinod Chandran. 4. Sri.Shaji Thomas will reiterate the contentions and submits that if O.T.A.9 of 2007 is allowed, the petitioner, having paid the tax, will not get the refund and there may be assessments made and petitioner will pay the tax and there is no warrant for detaining the goods for non-payment of tax at 12.5%. On the other hand Sri.Vinond Chandran would point out that the petitioner has not obtained stay of the order passed by the Commissioner, which is impugned in O.T.A. 9 of 2007 and he is not entitled to any benefit. 5. The question of detention of goods is a matter which has to be determined with reference to the relevant statutory provision, which is contained in Section 47(2). As far as the case on hand is concerned, the claim of the petitioner is a wide claim, namely that goods may not be detained till the disposal of O.T.A. It is to be noted that even though the dealer preferred O.T.A, the dealer failed to obtain any interim order in the case. The resultant position is that it is the clarification issued by the WPC. 14602/2008. 4 Commissioner under Section 94 of the VAT Act, which holds the field. Therefore, in such circumstances, the relief as claimed by the petitioner is only to be rejected. Needless to say, the goods can be detained strictly in accordance with the mandate of Section 47(2) of the Act. Subject to this observation, the writ petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb