IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 34286 of 2010(I) -------------------------- PETITIONER: ------------------ ARDESHIR.B.CURSETJEE & SONS LTD., (ABC & SONS LTD.), 24/1567 SUBRAMANIAN ROAD, WILLINGDON ISLAND, KOCHI-682 003, REPRESENTED BY K.BALAGOPAL, JT.GENERAL MANAGER AND POWER OF ATTORNEY HOLDER. BY ADV. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE RESPONDENT: ------------------- THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR 678 624. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 34286 of 2010 --------------------------------- Dated this the 15th day of November, 2010 JUDGMENT Petitioner is aggrieved by interception of transport of a Dredger (ELLICOT 370-S1070). According to the petitioner they are registered dealers under the provisions of the CST Act as well as KVAT Act and the dredger in question was purchased by them and shipped from USA as evidenced from Ext.P4 certificate. According to the petitioner the dredger in question is a vessel having registration under the provisions of the Public Canals and Public Ferries Act. The certificate issued by the Canal Officer, Mattancherry for operation of the vehicle is produced as Ext.P3. The vessel in question is insured with Oriental Insurance Company and Ext.P5 is the certificate of Insurance. According to the petitioner, while the petitioner was executing works contract for Cochin Port Trust, the vessel was taken to the State of Madhya Pradesh in order to execute a work undertaken by Madhya Pradesh Power Generating Company Limited, Jabalpore . Petitioner had produced Ext.P8 copy of delivery note and Ext.P9 and P10 declarations which will indicate that the vessel was transpsortoed from Cochin to the State of Madhya Pradesh, in January, 2010. Ext.P11 document will indicate that the company at Madhya Pradesh WP(C).No.34286/2010 2 had made endorsement on the request submitted by the petitioner to transport the Dredger out of the work site of the company. The dredger in question was transported in a truck accompanied by Form 15 Delivery note under Ext.P12 along with declarations as per Exts. P13 and P14. The transport was intercepted by the respondent on issuing Ext.P15 notice under section 47(2) of the KVAT Act. The reason for detention mentioned is that the entries made in the delivery note is not a carbon copy and the delivery note was not prepared using double sided carbon, as stipulated under Rule 58(16). Further it is stated that the petitioner is not authorised to deal with the item under transport. Hence security deposit was demanded suspecting evasion in payment of tax. 2. The learned Government Pleader had made available for my perusal the original of Ext.P12 delivery note . It is evident that some of the entries regarding the description of the goods and the name and registration number of the vehicle in which it was transported and name and address of the person who was in charge of the vehicle etc. were seen written not using carbon paper. It is also noticed that the delivery note was not prepared using double sided carbon paper as stipulated under Rule 58 (16). 3. From the documents produced, it is evident that the goods WP(C).No.34286/2010 3 under transport is a vessel (Dredger) which is not a brand new one purchased by the petitioner. From the documents it is also evident that the vessel was taken to Madhya Pradesh and it was brought back to Cochin by the petitioner itself. It is also evident that the vessel in question is having a registration and licence issued by the competent authority at Cochin. 4. The question whether there was proper documents accompanying the transport and as to whether there was any attempt at evasion of payment of tax are matters need be decided on finalisation of the adjudication as contemplated under section 47. I am of the opinion that considering the above aspect and also considering the fact that the petitioner is a registered dealer, the goods can be released on the petitioner furnishing security bond pending finalisation of the enquiry. 5. In the result, the writ petition is disposed of directing the respondent to release the goods along with the vehicle detained under Ext.P15 notice on the petitioner furnishing Security Bond in the form prescribed under the KVAT Rules, without sureties. The bond as directed above shall be executed by the branch-in-charge who will be authorised by the petitioner company in this behalf. 6. It is made clear that the petitioner will also furnish an WP(C).No.34286/2010 4 undertaking before the respondent to the effect that the vessel (Dredger) will not be transported out of the State of Kerala before finalisation of the enquiry as contemplated under section 47. 7. It is also made clear that the respondent will be at liberty to address the awarder of the work ( Cochin Port Trust) to retain the amount of security deposit demanded under Ext.P15, out of the final bill of contract payable to the petitioner, until finalisation of the the enquiry proceedings. 8. The competent authority under section 47 is directed to finalise the enquiry after affording an opportunity of hearing to the petitioner, as early as possible, at any rate, within a period of one month from the date of release of the goods. It is also made clear that the enquiry officer is at liberty to make a verification of the goods and prepare a mahazar before releasing of the goods . C.K.ABDUL REHIM,JUDGE pmn/ WP(C).No.34286/2010 5 However, C.K.ABDUL REHIM, JUDGE Pmn/ WP(C).No.34286/2010 6