IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 23103 of 2009() ------------------------- PETITIONERS: --------------- 1. M/S.PRATHIBHA SHIPPING CO.LTD., 1201/02 AREADIA,NCPA MARG,NARIMAN POINT, MUMBAI,REP.BY ITS DGM PROJECTS AND PURCHASE MR.ANIL U.SHELAR. 2. CASTROL INDIA LTD., MAHAKALI CAVES ROAD,CHAKALA,ANDHERI EAST, MUMBAI,REP.BY ITS FINANCE DIRECTOR, MR.AMISH P.MEHTA. BY ADV. MS. S .K.DEVI MR. M.RAJ MOHAN RESPONDENTS: --------------- 1. THE COMMERCIAL TAX INSPECTOR, DEPT OF COMMERCIAL TAXES, WALAYAR CHECK POST,WALAYAR. 2. THE INSPECTING ASST.COMMISSIONER, DEPT.OF COMMERCIAL TAXES,EDAPPALLY. BY GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 23103 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of August, 2009 JUDGMENT The petitioners have approached this Court challenging the proceedings of the first respondent in causing detention of the goods (5040 litres of lubricant oil) at Walayar Check Post leading to issuance of Ext.P1 notice dated 22.2.2009 under Section 47 (2) of the KVAT Act. The incriminating circumstances noted therein are; i. consignee is not a registered dealer; ii. the purchase is in bulk quantity; and iii. that no documents were accompanied to prove own use 2. The learned counsel appearing for the petitioner submits that, the transportation was effected by the second petitioner based on the supply order issued by the first petitioner, who is a shipping company in connection requirements of one of their ships anchored in the Port of Cochin and that the factum of 'own use' is very much discernible from Ext.P2 delivery note dated 19.2.2009. The detention of the goods is absolutely without any rationale, submits the learned counsel. It is also submitted that because of the steps taken by the respondents, driving the petitioner from piller to post, the intended supply could not be effected and the vessel belonging to the 1st petitioner has already left WP (C) No. 23103 of 2009 : 2 : Cochin, under which circumstance, the 2nd petitioner intends to take back the goods to Chennai, from where it was brought in. 3. The learned Government Pleader submits that, the first petitioner is not a registered dealer and that the goods have already crossed the border and further that the petitioner could not prove the genuineness of the transaction at the relevant time, for which absolutely no blame can be fastened on the shoulders of the respondents. 4. The learned counsel for the petitioner submits that, the second petitioner is not a registered a dealer in Kerala. The learned Government Pleader asserts that the Kerala unit of the second petitioner is very much a registered dealer under the relevant provisions of the Act. The dispute regarding the non registration of the 'unit' is of a little consequence, in so far the second petitioner is a Company incorporated under the Indian Companies Act 1956. The Company is very much entitled to sue or be sued on its own name. 5. Considering the facts and second petitioner is permitted to take back the goods on condition that, the authorised officer of the second petitioner Company executes a 'personal bond' and on satisfying the said requirement, the respondent shall release the goods to the 2nd petitioner forthwith. It is however made clear that, this will be without prejudice to the right of the respondent to pursue the WP (C) No. 23103 of 2009 : 3 : adjudication proceedings, if so intended, which however shall be finalized as expeditiously as possible, at any rate within two months from the date of a copy of this judgment. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd