IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 31859 of 2010(F) -------------------------- PETITIONER: ------------------ A.A.FRANCIS, FRANJO ENGINEERING CORPORATION, 35/421 (17), RAZI PALACE, 1ST FLOOR, OLAVAKKODE, PALAKKAD. BY ADV. SRI.N.MURALEEDHARAN NAIR RESPONDENT: ------------------- INTELLIGENCE INSPECTOR, SQUAD NO.II, COMMERCIAL TAXES, ALAPPUZHA AT CHENGANNUR - 688746 BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------- W.P(C) No.31859 of 2010-F ---------------------------- Dated this the 19th day of October, 2010. J U D G M E N T Petitioner is aggrieved by detention of Electrical Panel Boards transported by him from Erankulam to Kayamkulam, which is allegedly consigned to M/s.Southern Railway for the purpose of erecting it at Kayamkulam Railway Station. Ext.P5 is the notice issued under Section 47(2) of the Kerala Value Added Tax Act (KVAT Act). It is revealed that at the time of interception the consignment was not accompanied with any documents such as, invoices or delivery note or delivery challan, issued either by the consignor or the consignee. Since no valid documents as required under Section 46(3) of the KVAT Act was accompanying the transport and since the registration particulars of the consignor or the consignee was not available, suspecting evasion of payment of tax Security Deposit was demanded. 2. According to the petitioner he is a contractor executing work on behalf of M/s.Southern Railway. Ext.P6 letter of the Senior Section Engineer of Southern Railway which was available with the W.P(C) No.31859 of 2010-F 2 transport will clearly indicate that the goods in question was transported from Ernakulam to Kayamkulam Railway Station, in execution of the electrical contract work undertaken by the petitioner on behalf of the the Southern Railway. Ext.P6 refers to the contract agreement entered between the petitioner and the railway, dated 24.12.2007. The petitioner had further produced Ext.P7 Gate Pass as well as Ext.P8 letter of the Senior Section Engineer, which will reveal that 'Electric Panel Board' was transported pursuant to the contract undertaken by the petitioner, for the purpose of installation at the Railway Station at Kayamkulam. Ext.P9 is produced to show that the petitioner is a work contractor having registration under the provisions of the KVAT Act and he had filed returns for the period from April to June 2010. Under such circumstances, contention of the petitioner is that the transport was genuine and there was no attempt in evasion of payment of tax. 3. Learned Government Pleader on behalf of respondent submitted that the goods were detained since there was no proper documents accompanied with the transport, as required under Section 46(3) of the KVAT Act. Even the alleged agreement (contract) was not produced by the petitioner nor any delivery note W.P(C) No.31859 of 2010-F 3 which was required for the purpose of transport of the goods for own use, were not available along with the goods. Learned Government Pleader also submitted that genuineness of the Gate Pass produced as Ext.P7 itself is doubtful since there is discrepancy in the date of such documents. Therefore the contention is that the suspicion raised regarding genuineness of the transport is reasonable and the petitioner should be insisted for payment of the security deposit. 4. The question whether the transport was genuine and as to whether there was any attempt in evasion of payment of tax, are matters which need be decided on finalising the enquiry. Going by the documents produced, it is evident that the petitioner has undertaken an electrical contract work with the Southern Railway and that he is a registered dealer filing returns. It is also evident that the goods detained is fabricated 'Electrical Panel Boards' and the same is transported on the strength of Ext.P6. Under such circumstances pending finalisation of the enquiry, I am of the opinion that the goods can be released on the petitioner furnishing security. 5. The respondent is directed to release the goods along W.P(C) No.31859 of 2010-F 4 with the vehicle which is detained as per Ext.P5 notice, on condition of the petitioner furnishing Security Bond in the form prescribed under KVAT Rules, without sureties. 6. The competent authority under Section 47 will finalise the enquiry, after affording an opportunity of hearing to the petitioner, at the earlies possible, at any rate within a period of six weeks from the date of release of the goods. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab W.P(C) No.31859 of 2010-F 5