IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 31974 of 2008(F) -------------------------- PETITIONER(S): --------------- 1. T.V.K.CONSTRUCTIONS REP. BY ITS MANAGING PARTNER-T.V.KUNJUKRISHNAN ARAMAM, PADA NORTH, KARUNAGAPALLY, KOLLAM. 2. M/S.JVP & SONS, REP. BY ITS PROPRIETOR J.SARAVANAN, NO.5/91-9, SPIC ANCILLARY INDUSTRIAL ESTATE, SPIC NAGAR, TUTICORIN, TAMILNADU-628005. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): --------------- 1. INTELLIGENCE INSPECTOR SQUAD NO.III,, COMMERCIAL TAXES THIRUVANANTHAPURAM AT NEYYATTINKARA. 2. COMMERCIAL TAX OFFICER (WORKS CONTRACT AND LUXURY TAX), DEPARTMENT OF COMMERCIAL TAXES, KOLLAM. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF WORK ORDER. P2 COPY OF EXTENSION LETTER. P3 COPY OF NOTICE BY R1. P4 COPY OF REPLY TO R1. P5 COPY OF BILL OF ENTRY. P5(A) COPY OF BOND TRANSFER AGREEMENT P5(B) COPY OF LETTER. P5(C) COPY OF INVOICE IN FAVOUR OF 2ND PETITIONER. P6 COPY OF REPLY BY R1. P7 COPY OF EXPLANATION GIVEN TO R1. P8 COPY OF LETTER TO R1. P8(A) COPY OF CERTIFICATE OF OWNERSHIP P8(B) COPY OF CERTIFICATE OF VAT REGISTRATION. P8(C) COPY OF DECLARATION OF 1ST PETITIONER. P9 COPY OF ORDER PASSED BY R1. // TRUE COPY // P.A. TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 31974 OF 2008 F ```````````````````````````````````````````````````` Dated this the 12th day of November, 2008 J U D G M E N T Petitioners challenge Exts.P3, P6 and P9. Direction is sought to release the truck bearing registration No.TN 69F/1482 and JCB (LW 321 Front End Loader). Further direction is sought to release the truck and JCB to the petitioners so as to enable them to take back the JCB to Tuticorin to obtain registration for the JCB from the concerned Regional Transport Officer of the Motor Vehicles Department. 2. Case of the petitioners in brief is as follows. The 1st petitioner is a registered dealer under the KVAT Act engaged in undertaking civil contract works. The 2nd petitioner is doing business of giving on hire JCB, earth removers, etc. On 24.8.2007, M/s.Kerala Minerals and Metals Ltd., Chavara awarded a work to the 1st petitioner. WPC.31974/08 : 2 : The contract period was extended for a period of one year from 4.9.2008. The 1st petitioner took on hire a JCB(Front End Loader) from the 2nd petitioner for one year. It was sent to the work site of the 1st petitioner. The truck and the JCB carried therein crossed Amaravila check post without any objection after due verification. When it reached near Neyyattinkara, the 1st respondent intercepted the truck and issued a notice under section 47(2) of the KVAT Act. Petitioners filed reply. Thereafter, this court directed a decision to be taken on the reply and Ext.P9 resulted. By Ext.P9, the officer reiterated the demand for security. 3. I heard learned counsel for the petitioners and learned Government Pleader. Learned counsel for petitioners would contend that the JCB was meant for carrying on a work contract with M/s.Kerala Minerals and Metals Ltd. and it was accompanied by the purchase order, Form-16 certificate and also the letter dated 14.8.2008 (the last produced as Ext.P8). In Ext.P9, various aspects have been considered by the WPC.31974/08 : 3 : officer as part of the reasoning to reiterate the demand for security. In the certificate issued in Form-16, the 1st petitioner is shown as the owner. Learned counsel for the petitioners would point out that it is only a mistake. The JCB in question is a new one which has not even been registered under the Act. Learned counsel for petitioners points out that the 1st petitioner was not aware that it is a new vehicle. It is also noted that the date of detention of the Front End Loader was on 14.10.2008 and there was a gap of 26 days and there was sufficient time, if ownership is with the 2nd petitioner, to register the vehicle before the motor transport authority concerned. In the declaration filed with the Commercial Tax Officer, Amaravila, the name of the consignee is M/s.Kerala Minerals and Metals Ltd., Chavara, it is noted. 4. Learned counsel for petitioners submitted that the petitioners may be permitted to take back the vehicle and an Advocate Commissioner may be appointed in this regard. The vehicle has been detained at a place near Neyyattinkara, WPC.31974/08 : 4 : where the proceedings have been initiated. In the nature of the proceedings, prima facie, I would not think that a case is made out to permit the petitioners to take back the vehicle. Then, learned counsel for the petitioners submits that the vehicle may be released on executing a bond for the value of the vehicle arrived at which amounts to Rs.14,50,000/- which is discernible from the documents. A calculation is made in Ext.P9. In the facts and circumstances of the case, I would think that the vehicle can be released to the petitioners on the petitioners furnishing Bank Guarantee in a sum calculating the tax at twice the rate of the value calculated as Rs.14,50,000/- and a simple bond being executed without sureties for the balance amount. Accordingly, writ petition is disposed of as follows. If the petitioners furnish bank guarantee for a sum of Rs.3 lakhs (Rupees Three Lakhs) and execute a simple bond without sureties for the balance amount, the goods in question will be released to the petitioners forthwith. If the WPC.31974/08 : 5 : registration is sought for within the State of Kerala by the 2nd petitioner, the concerned authority will take a decision thereon in accordance with law. Sd/- (K.M.JOSEPH, JUDGE) aks