IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WP(C).No. 32528 of 2009(I) -------------------------- PETITIONER(S): --------------- M/S.SURABHI SUPREME MARBLE & GRANITES PVT.LTD.,M.C.ROAD,KIDANGOOR,ANGAMALY, ERNAKULAM DISTRICT-REPRESENTED BY ITS MANAGING DIRECTOR,SHRI.SHIBU AUGUSTINE. BY ADV. SRI.T.M.SREEDHARAN RESPONDENT(S): --------------- 1. THE ASSISTANT COMMISSIONER (KVAT), SPECIAL CIRCLE,COMMERCIAL TAXES, MATTANCHERRY AT ALUVA. 2. THE INTELLIGENCE INSPECTOR, SQUAD NO.IV,DEPARTMENT OF COMMERCIAL TAXES, EDAPPALLY,COCHIN-682 024. 3. THE INTELLIGENCE OFFICER, SQUAD NO.IV,ERNAKULAM. 4. THE REGIONAL ENGINEER (IN-CHARGE), KERALA STATE NIRMITHI KENDRA,PALAKKAD. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/11/2009, ALONG WITH WP(C).32575 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ---------------------------------- W.P.(C).Nos.32528 and 32575 of 2009 ---------------------------------- Dated this the 13th day of November, 2009 J U D G M E N T ---------------------- 1. The petitioners in these writ petitions have approached this court on an earlier occasion seeking release of the transport of “Granite Slabs” detained under Section 47(2) of the Kerala Value Added Tax Act, 2003 (KVAT Act). This court issued directions to the competent authority entrusted with the power of adjudication under Section 47(6) to conduct a physical verification and to take measurement of the goods, in the presence of the petitioner, if necessary with the aid of an expert, and to finalise the adjudication on the basis of the result of such measurement. 2. In compliance with the directions contained in the judgment, measurement was conducted with assistance of an expert from the 'Kerala State Nirmithi Kendra' and the penalty proceedings was finalised based on the report of such measurement. It is revealed that the quantity of 'Granite Slabs' which was originally alleged in the notices issued under Section 47(2), has been considerably reduced as per the said measurement. Consequently penalty is imposed only on the W.P.(C).32528 & 32575/09 2 basis of the quantity of goods arrived through the fresh measurement. 3. According to the petitioner, even the measurement taken as above was not conducted in a proper manner and each and every slabs contained in the transport was not measured independently. It is also contended that the expert in question has not conducted the measurement following the common trade practice prevalent in the business parlance. 4. I am not inclined to entertain these writ petitions and to consider merits of the contention raised above or to adjudicate upon such contentions, because an effective remedy by way of appeal is provided against the orders imposing penalty under Section 47(6), as per the statute. Hence I am of the opinion that the petitioners can be given with opportunity to challenge the impugned orders before the appropriate appellate authority. It is for the petitioners to substantiate their claims through proper evidence before the appellate authority, with respect to the correctness of the measurement. 5. In the result the writ petitions are dismissed without prejudice to rights of the petitioners to approach the appellate authority against the impugned orders of penalty. In case if such appeals are filed, the appellate authority shall consider and W.P.(C).32528 & 32575/09 3 dispose of the same independently, untrammeled by any observations contained either in this judgment or in the judgment in the previous cases. C.K.ABDUL REHIM, JUDGE. okb