IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 WP(C).No. 37048 of 2008(I) --------------------------------------------- PETITIONER(S): ----------------------- M/S.SIEMENS LTD. K.G.OXFORD BUSINESS CENTRE NO.39/4609, SREEKANDATH ROAD, ERNAKULAM, KOCHI REP. BY P.V.VENUGOPAL, CHIEF MANAGER-INDIRECT TAXATION. BY ADV. SRI.JOSE JOSEPH RESPONDENT(S): -------------------------- 1. COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, AMARAVILA. 2. COMMERCIAL TAX OFFICER(ENQUIRY)-II, OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, C.V.TOWER, MALLOOR ROAD, VANCHIYOOR, TRIVANDRUM-35. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 37048 OF 2008 I -------------------------------------- Dated this the 18th December, 2008 JUDGMENT Proceedings were commenced against the petitioner under Section 47(2) of the KVAT Act. Petitioner furnished Bank Guarantee and the goods were released to the petitioner. Adjudication proceedings are on. Petitioner challenges the authority of the Adjudicating Officer to adjudicate the specific issue which arises. According to petitioner, the goods in question were imported on the strength of an existing contract made with the purchaser in Nagarcoil and, therefore, it is not subject to any liability under the KVAT Act or even under the CST Act, being a sale protected under Section 5(2) of the CST Act. According to petitioner, the question is whether the petitioner is entitled to exemption, and that is a question which can be gone into only by the assessing authority. Learned Government Pleader points out that proceedings have been initiated and there is power under Section 47(2) of the KVAT WPC.37048/08 I 2 Act. I feel that it is for the petitioner to raise all the contentions, if so advised, including the contention that the Authority does not have jurisdiction, in the facts of this case, before the Authority. Learned counsel for the petitioner raises an apprehension that if an order is passed adverse to the petitioner, the Bank Guarantee furnished by the petitioner will be immediately enforced and adjusted against penalty. He points out that the petitioner has thirty days' time to file an Appeal. In such circumstances, the Writ Petition is disposed of as follows: It is open to the petitioner to raise all contentions available to it in law and on facts before the second respondent. It is ordered that if the order passed is against the petitioner, the Bank Guarantee shall not be enforced for a period of three weeks from the date of service of the order. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge