IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WP(C).No. 13096 of 2006(H) -------------------------- PETITIONER: ------------------- KAVERIPET AND POLYFORMS PVT.LTD., KOLENCHERRY P.O. ERNAKULAM, 682 311, REPRESENTED BY ITS EXECUTIVE DIRECTOR, A.R.SASIKUMAR. BY ADV. SRI.ANIL D. NAIR RESPONDENT(S): ------------------------- 1. THE COMMISSIONER TAX OFFICER (VAT), IIND CIRCLE, PERUMBAVOOR. 2. THE SALES TAX INSPECTOR, SALES TAX CHECK POST, WALAYAR, PALAKKAD 678 624. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, KERALA GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb WP(C).No. 13096 of 2006 APPENDIX PETITIONER'S EXHIBITS:- P1:- COPY OF THE INVOICE DATED 15TH MAY, 2006 EVIDENCING TRANSPORT P2:- COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 16.05.2006 DEMANDING ENTRY TAX P3:- COPY OF THE ORDER DATED 08.04.2005 IN W.P(C)NO.12110/05 PASSED BY THIS HON'BLE COURT P4:- COPY OF THE ORDER DATED 04.11.2005 W.A.NO.2267/2005 PASSSED BY THIS HON'BLE COURT RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A.TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 13096 OF 2006 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 3rd day of December, 2010 JUDGMENT The petitioner has approached this Court with the following prayers: (i) declare section 6 (7) (d) of the Finance Act 2005 by which “machineries” are included as item No. 62 to the schedule to the Kerala Tax on Entry of Goods into Local Areas Act 1994, as confiscatory and beyond the powers of the state legislature and quash the same by the issue of a writ of certiorari or such other writ or order or direction. (ii) quash Ext. P2 notice issued by the second respondent by the issue of a writ of certiorari or such other writ or order or direction. (iii) issue a writ of mandamus or such other writ order or direction directing the detaining authorities to release the consignment detained demanding entry tax by accepting bonds without sureties as passed in Exts. P3 and P4 orders pending hearing and final disposal of this writ petition. (vi) pending hearing and final disposal of this writ petition, this Hon'ble Court be pleased to direct the second respondent to release the consignment detained vide Ext. P2 without insisting on payment of entry tax. (vii) to grant the petitioner such other incidental reliefs including the costs of these proceedings. W.P. (C) No. 13096 of 2006 2 2. When the matter came up for consideration before this Court on 19.05.2006, the following interim order was passed “Government Pleader takes notice on behalf of the respondents. There will be direction to the second respondent to release the consignment detained as per Ext. P2 notice upon the petitioner furnishing bank guarantee for the amounts demanded in Ext. P2” 3. Heard the learned Government Pleader as well. 4. The question to be considered is whether any entry tax could be legally recovered from the petitioner, pursuant to Ext. P2. The legal position in the regard has been made clear by this Court as per the decision reported in Thressiamma L Chirayil Vs. State of Kerala (2007 (1) KLT 303) holding that, no such course is open to the State/Revenue. 5. In the said circumstances, this Court finds that, the petitioner is entitled to succeed. Accordingly, the Writ Petition is allowed, Ext. P2 is set aside and a declaration is given in terms of the verdict cited supra. The 'bank guarantee', if any furnished by the petitioner pursuant to the interim order passed by this Court is still alive, it shall be caused to be returned to the petitioner within one month from the date of receipt of a copy of this judgment. 6. In view of he submissions made by the learned Government Pleader that the issue is pending before the Apex Court, at the instance of W.P. (C) No. 13096 of 2006 3 the State/Revenue, it is made clear that, this verdict will not stand in the way of the State/Revenue to take appropriate steps against the petitioner, if the matter is decided by the Apex Court in favour of the State/Revenue in the due course. P. R. RAMACHANDRA MENON, JUDGE kmd