IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 27684 of 2009(E) -------------------------- PETITIONER(S): --------------- P.A.UTHUBATHU, PROPRIETOR, M/S.SURANA GRANITE, VII/442 J&K,VETTIKATTIRI POST, THRISSUR DISTRICT. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): --------------- 1. COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR. 2. COMMERCIAL TAX OFFICER, COMMERCIAL TAX CHECK POST, WALAYAR. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAX CHECK POST, WALAYAR. 4. GOVERNMENT OF KERALA REPRESENTED BY THE COMMISSIONER OF COMMERCIAL TAXES,\ THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.27684 OF 2009 ------------------------------ Dated this the 1st day of October, 2009 J U D G M E N T ---------------------- 1. Petitioner is aggrieved by detention of inter-state transport of Granite Slabs at the border check post, Walayar. According to the petitioner the goods under transport is 830 Sq: Ft: of Granite Slabs purchased by the petitioner on the basis of Ext.P2 invoice and also certain quantity of granites purchased by another person for his own use from the very same consignor, under Ext.P3 invoice. The transport was detained by the 1st respondent on issuing Ext.P4 notice under Section 47(2) of the Kerala Value Added Tax Act, 2003. It is mentioned in Ext.P4 that eventhough the quantity covered under Ext.P2 invoice is only 830 Sq: Ft:, the quantity was found to be 1666 Sq:Ft: on physical verification. Therefore security deposit to the tune of double the amount of tax was demanded on the total quantity of Granite Slabs found on the basis of physical verification. 2. Contention of the petitioner is that 1st respondent had not conducted any actual measurement following the norms after exempting crackage and breakage. It is evident from Ext.P5 that on issuing Ext.P4 notice the petitioner had approached the 1st W.P.(C).27684/09-E 2 respondent with a request to conduct measurement of the Granite Slab detained, through any independent authority of the State Government having knowledge and skill, at the expense of the petitioner. But it is submitted that without taking any steps to conduct actual measurement of the goods, now the respondent is detaining the consignment demanding security as per Ext.P4 notice and also demanding payment of advance tax. 3. Heard learned Government Pleader on behalf of the respondents. It is submitted that Granite Slab is an item for which advance tax is being collected. It is further submitted that the demand of security deposit is on the basis of physical verification made by the 1st respondent and the value is calculated on the basis of the rates provided under Ext.P3 invoice. The question whether there was any underquoting of actual quantity and thereby any attempt at evasion of payment of tax, is a matter to be decided on completion of adjudication under Section 47. 4. Grievance of the petitioner is that if actual measurement following the normal procedure and norms with respect to the goods under transport is not taken, that will affect further proceedings of adjudication and will create burden on the petitioner with liability of Tax and penalty. Therefore he W.P.(C).27684/09-E 3 seeks direction from this court for measurement of Granite Slabs covered under the transport by any higher officer of the 1st respondent, for which the petitioner is ready to bear expenses. 5. Having considered the rival contentions I am of the opinion that the continued detention of transport pending finalisation of adjudication proceedings is not warranted and that goods can be released on furnishing proper security. Under such circumstances the writ petition is disposed of directing the 3rd respondent, who is the higher authority of the 1st respondent, to conduct physical measurement of the Granite Slab covered under the transport, if necessary with the assistance of any expert, at the expense of the petitioner. Such measurement need be taken as early as possible, at any rate within three days of receipt of this judgment. 6. The 1st respondent is directed to release the goods and vehicle detained under Ext.P4 on the petitioner making payment of an amount equivalent to tax due on the quantity of Granite Slabs ascertained through measurement, as advance tax without prejudice to the process of adjudication, and on furnishing Security Bond in the form prescribed under the KVAT Rules, without sureties, for the balance amount. 7. It is further directed that the competent authority W.P.(C).27684/09-E 4 under Section 47 shall finalise the adjudication proceedings after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb