IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 WP(C).No. 34243 of 2009(A) --------------------------------------- PETITIONER: ------------------- N.SULAIMAN, N.S.CHICKEN AGENCIES, KOTTAPPURAM, VALANCHERY, MALAPPURAM DISTRICT. BY ADVS. MR.N.MURALEEDHARAN NAIR, SMT.K.HYMAVATHY, MR.T.G.ABHILASH. RESPONDENT: ---------------------- ASSISTANT COMMISSIONER (KVAT), MALAPPURAM. BY GOVT. PLEADER MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL RAHIM J. ----------------------------- W.P(C) No.34243 of 2009-A ------------------------------ Dated this the 7th day of December, 2009. J U D G M E N T 1. The petitioner is challenging Ext.P7 notice issued under Section 16(10) of the Kerala Value Added Tax Act, 2003 (KVAT Act) read with Rule 17(18) & (viii) of the KVAT Rules and Section 7(4)(b) of the CST Act, 1956. By the impugned notice, the petitioner was called upon to submit objections if any, against proposal for cancellation of registration under the KVAT and CST Act. The registration was cancelled on an earlier occasion, which was challenged before this Court in W.P(C) No.30951 of 2009. In Ext.P5 judgment, this Court quashed the proceedings without prejudice to rights of the authorities to initiate fresh proceedings with proper allegations which may constitute grounds for cancellation under Section 16(10) of the Act. In Ext.P7 notice, after referring to Ext.P5 judgment, allegations are raised against the petitioner to the effect that the petitioner had conspired to defraud the Government and thereby bogus cheques were issued against payment of advance tax with the active connivance of some others. The petitioner inter alia seeks directions for issuing necessary delivery notes for facilitating W.P(C) No.34243 of 2009-A 2 transport of chicken from outside the state. It is also submitted by the petitioner that simultaneously with Ext.P7 notice, proposal for imposition of penalty is also issued, against the petitioner. 2. When the writ petition came up for consideration, on the basis of request made by the petitioner, the respondents were directed to receive payments if any made by the petitioner with respect to the amounts covered under the dishonoured cheques. It is now submitted that the amount mentioned in Ext.P7 pertaining to the dishonoured cheques has already been paid. 3. With respect to proposal for cancellation of registration as well as the proposal if any issued for imposition of penalty, I am of the opinion that proceedings are only at a notice stage and the petitioner has got liberty to file objections against such proposals. Learned counsel for the petitioner submitted that objections have already been filed against the proposed notices. Needless to say that the respondents will consider those objections and the petitioner shall be afforded a reasonable opportunity of hearing before finalisation of such proceedings. 4. The learned counsel for the petitioner contended that W.P(C) No.34243 of 2009-A 3 since the registration has not so far been cancelled, the authorities are not entitled to detain transport of chicken nor they are entitled to cause any restrain on the petitioner from continuing with the business. Learned Government Pleader had produced a copy of Circular No.17/2009 dated 13.11.2009, issued by the Commissioner of Commercial Taxes, wherein it is observed that for bringing live chicken from outside the state, CST registration shall not be necessary and it is further stated that since chicken is not a notified commodity, there is no requirement for delivery note under Form No.15 to accompany such transport. In fact the dealers are permitted to bring chicken from outside the state on the basis of sales invoice of the supplier and on the basis of self declaration containing the details regarding such consignment. It is mentioned in the circular that such procedure will be permitted on payment of advance tax. The circular in question deals about the procedure to be followed by the authorities concerned. Considering the stipulations contained in the above said circular, it is clear and evident that any dealer in chicken shall be permitted to transport live chicken from outside the state without insisting for any delivery W.P(C) No.34243 of 2009-A 4 note. 5. Therefore, I am of the opinion that as long as the registration of the petitioner stands not cancelled, there is no reason for preventing the petitioner from doing business or from transporting chicken complying with the stipulations contained in the circular referred to above. With the above observations, the writ petition is disposed of providing liberty to the petitioner to object to the proposals, as directed above. Sd/- C.K.ABDUL RAHIM JUDGE //True Copy// P.A to Judge ab W.P(C) No.34243 of 2009-A 5