IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 WA.No. 1937 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33230/2011 Dated 13/12/2011 .................... APPELLANT(S): / PETITIONER -------------- GYPSUM STRUCTURAL INDIA PVT. LTD., PLOT NO.170, F.J.E, PATPARGANJ INDUSTRIAL ESTATE, DELHI-110092, REP. BY ITS ASSISTANT MANAGER AND AUTHORISED SIGNATORY WASSIM AHAMMED. BY ADV. SRI.B.PRAMOD RESPONDENT(S): / RESPONDENTS --------------- 1. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR. 2. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAX CHECK POST, WALAYAR. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAX CHECK POST, WALAYAR. MR.BOBBY JOHN, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.VINOD CHANDRAN, JJ. .................................................................... W.A. No.1937 of 2011 .................................................................... Dated this the 16th day of December, 2011. J U D G M E N T Ramachandran Nair, J. Heard learned counsel for the appellant and learned Senior Government Pleader for the respondents. 2. This Writ Appeal is filed against the judgment of the learned Single Judge directing to release the goods detained on the appellant furnishing Bank Guarantee for the security amount, which is Rs.50.50 lakhs. Learned counsel for the appellant submitted that the total consideration received for the drilling work done in Kerala itself is only Rs.90 lakhs. 3. Learned Senior Government Pleader pointed out that there is nothing to indicate on record as to whether the appellant had taken registration before brining the equipment to Kerala and there is no document proving payment of any tax in Kerala, though the machine was apparently given on lease for use as a drilling equipment. W.A.No.1937/2011 2 4. After hearing both sides, we are of the view that the machine is a horizontal drilling machine used for drilling of tunnels for laying pipes. So much so, tax liability if any is on consideration received for transfer of right to use the equipment. This is a matter which requires to be adjudicated after hearing the appellant. However, having regard to the nature of liability for tax, if any, we allow the Writ Appeal by modifying the judgment of the learned Single Judge as follows:- (1) Goods will be released on the appellant depositing Rs.5,00,000/- (Rupees five lakhs only) in cash and on furnishing simple bond without surety for the balance security amount. (2) Adjudication will be taken up and completed after release of the goods, and it is for the appellant to produce evidence of transport of the equipment to Kerala for use in the work, copies of contract and proof for consideration or charges received for the equipment for lease or otherwise for the W.A.No.1937/2011 3 adjudicating officer to consider tax liability, if any, after calling for evidence from the person or Company, with whom the appellant had contract. If the appellant has tax liability in Kerala, assessment if any required also will be completed without any delay. This Writ Appeal is allowed as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (K.VINOD CHANDRAN, JUDGE) jg