IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 27037 of 2009(Y) -------------------------- PETITIONER : --------------- AQUA SUB ENGINEERING, VI/21,PALAKKAD ROAD,PO.THRISSUR, REP.BY A.BALASUBRAMANIAM, BRANCH MANAGER,. BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENTS: --------------- 1. INTELLIGENCE INSPECTOR, COMMERCIAL TAX INTELLIGENCAE SQUAD-III, ALAPPUZHA. 2. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL RAHIM, J. ------------------------------------ W.P(C). No.27037 of 2009 ------------------------------------- Dated this the 25th day of September, 2009 JUDGMENT Grievance of the petitioner is that 16 number of pump sets, covered under Ext.P2 invoice, transported to a registered dealer in Kottayam from the business place of the petitioner at Trichur, was intercepted enroute by the 1st respondent under the provisions of Section 47(2) of the Kerala Value Added Tax Act, 2003 (for short `the Act') and issued Ext.P3 notice demanding security deposit. According to the petitioner, he is a registered dealer under the provisions of the KVAT Act and the transport was genuine and accompanied by documents required under the provisions of the Act. The transport was supported by the original of the tax invoice containing full description of the pump sets with the serial number of each such machine and therefore the suspicion expressed by the 1st respondent that the consignor might have transported another consignment using the same invoice is absolutely untenable is the contention. 2. In Ext.P3 the reason for detention stated is that the transport copy of invoice is not seen accompanied with the W.P(C). No.27037 of 2009 2 goods. According to the petitioner, he had in fact entrusted both copies of the invoices (original as well as duplicate) to the transporter and it may only by mistake on the part of the transporter that the original was accompanied along with the goods. 3. Having considered the rival contentions, I am of the opinion that the sustainability of proceedings under Section 47 (2) of the Act is dependent on the fact as to whether any attempt at evasion of payment of tax. The said aspect need be decided in a process of adjudication contemplated under the provisions of Section 47 of the Act. It is not proper for this Court to enter upon any findings in this respect at this stage. However, I am of the opinion that the detention need not be continued till finalisation of the adjudication, especially in view of the proviso to Section 47(2) of the Act, which enables release of goods on furnishing security. 4. Under the above circumstances, this Writ Petition is disposed of directing the petitioner to make payment of 50% of the amount demanded as security under Ext.P3 notice as `advance tax' and on furnishing a security bond, as provided under the Rules without sureties for the balance 50% amount. W.P(C). No.27037 of 2009 3 5. It is made clear that the payment of the amount as advance tax will not in any way preclude the authority to proceed with the adjudication process and ultimately in imposing penalty if the petitioner is found liable. 6. The competent authority shall expedite the adjudication process and the same shall be completed as early as possible, at any rate - within a period of one month from the date of release of the goods. C.K.ABDUL RAHIM JUDGE rtr/-