IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 29722 of 2010(M) ------------------------------------------ PETITIONER(S): ------------------------ JOSE PRAKASH.K.K., AGED 53 YEARS, S/O.VARGHESE THOMAS, NOW RESIDING AT CPT QUARTERS, E2/269, RNAS AREA, WELLINGTON ISLAND, ERNAKULAM. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): --------------------------- 1. THE INTELLIGENCE INSPECTOR, SQUAD NO.IV, ERNAKULAM, DEPARTMENT OF COMMERCIAL TAXES, GOVT.OF KERALA,EDAPALLY P.O.-682 026. 2. THE INTELLIGENCE OFFICER, SQUAD NO.IV, EDAPALLY P.O., ERNAKULAM - 682 026. 3. THE COMMISSIONER, COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM-695 001. 4. STATE OF KERALA, REP.BY ITS SECRETARY TO GOVT., GOVT.SECRETARIAT, TRIVANDRUM-695 001. 5. THE SALE TAX OFFICER, COMMERCIAL TAX CHECK OST, WALAYAR, PALAKKAD DISTRICT - 678 624. R1 TO R5 BY GOVERNMENT PLEADER SRI. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.29722 of 2010 ------------------------------------------- Dated this the 28th day of September, 2010 J U D G M E N T ---------------------- Petitioner is approaching this court seeking release of transport of Granite Slabs detained by the 1st respondent under Ext.P3 series notices, issued under Section 47(2) and 69(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act). According to the petitioner, the Granite Slabs were purchased from Bangalore for own use with respect to construction of his residential building. But the transport was intercepted at the Commercial Tax Ckeck Post at Walayar, and Ext.P3 series notices were issued. In Ext.P3 the reason for detention mentioned is that the validity period of the building permit and approved plan, which accompanied the transport, had expired on 23.02.2009. It is also noticed that on physical measurement there was variation in the quantity to the tune of 543 Sq: Ft: in excess. Further it is noticed that there is variation in the quality of the Granite Slabs. On the basis of the above allegation it is suspected that the transport was effected not for own use, but for sale. The 1st respondent has also initiated W.P.(C).29722/10-M -2- proceedings under Section 69(1) to impose penalty on the transporter with respect to difference in value pertaining to the excess quantity found. 2. Learned counsel for the petitioner submitted that the transport was accompanied by building permit issued from the Muncipality along with approved plan and also a certificate issued by the Village Officer, apart from invoice with respect to purchase and Form No.16. The reason for detention that the permit remained expired has no basis since the petitioner had already applied for renewal, is the contention. 3. Government Pleader appearing for the respondents submitted that the officer concerned has conducted physical verification at the construction site and it was revealed that the petitioner had already fixed flooring tiles in the first floor and tiles are seen kept stocked for using in the ground floor. Hence the Granite Slabs transported are not required for own use. 4. 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 finalisation of adjudication contemplated under Section 47. Therefore, I am not entering into any findings regarding the allegations, which are in dispute. I am of the opinion that the writ petition can be disposed of directing release of the goods as well as the vehicle, on the W.P.(C).29722/10-M -3- petitioner furnishing adequate security. 5. In the result, the writ petition is disposed of directing the 1st respondent to release the goods detained along with the vehicle under Ext.P3 series notices, on the petitioner furnishing Bank Guarantee for the amounts of security deposit and penalty amount demanded under Ext.P3 series notices. 6. The competent authority will finalise the enquiry at the earliest possible, after affording an opportunity of hearing to the petitioner, at any rate within a period of two months from the date of release of the goods. C.K.ABDUL REHIM, JUDGE. okb