IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 WP(C).No. 32658 of 2008(K) -------------------------- PETITIONER(S): --------------- M/S. BROTHERS TRANSPORT, POTHEN JOSEPH BUILDING, 5TH CROSS ROAD, WELLINGTOM ISLAND, COCHIN-682 003 REPRESENTED BY ITS PARTNER, GEORGE ROSHAN. BY ADV. SRI.K.J.ABRAHAM RESPONDENT(S): --------------- THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, FEROKE.P.O, KOZHIKODE - 673 631. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 32658 OF 2008 K ```````````````````````````````````````````````````` Dated this the 7th day of November, 2008 J U D G M E N T Petitioner challenges Ext.P4 which is a notice issued under section 47(2) of the KVAT Act. Therein it is stated that as per the invoice accompanied the goods are 1686 boxes from Rajkot to Mahe and on physical verification it is found that there are only 600 boxes. There is a reference to section 48 of the Act to contend that the goods should be accompanied by transit pass obtained from the first check post. It is stated that the consignment is not declared at the Commercial Tax Facilitation Centre at Cochin Port and at the enroute check post at Karukutty. It is also stated that ceramic tiles are classified as evasion prone commodities under the Act. 2. I heard learned counsel for the petitioner and learned Government Pleader. Learned counsel for petitioner would submit that it is only a bona fide mistake and that while on transport the driver of the vehicle stopped the vehicle in front of the Feroke check post and submitted Exts.P3 and P3(a) which are Form WPC.32658/08 : 2 : No.8F declaration and Form No.7B transit pass respectively. It is further stated that the petitioner took delivery of the consignment from Cochin Port and transported to the consignee's business place at Mahe. Mahe is being a congested traffic area, the police officers will not permit to park the heavy vehicles such as trailers and therefore, the petitioner reshuffled the goods and loaded in two lorries. The first consignment consisting of 1086 boxes were delivered. 600 boxes which remained is the subject matter of Ext.P4. It is stated that it is only by an oversight the driver of the vehicle did not endorse the documents at the Facilitation Centre at Wellington Island or the check post at Karukutty. It is also stated that the petitioner and the consignee are not registered dealers under the KVAT Act. 3. Per contra, learned Government Pleader points out that a transit pass should have been taken and it has to be surrendered at the check post. He also points out that the petitioner is not even registered under the KVAT Act and that no interference is called for. 4. After having considered the facts of the case, I am of WPC.32658/08 : 3 : the view that this is not a fit case where this court should interfere with the demand for security under section 47(2) of the Act. I take note of the fact that the petitioner is not a registered dealer. 5. Lastly, learned counsel for the petitioner submits that the goods may be released on furnishing bank guarantee. 6. I think that the request of the petitioner can be granted and while declining the prayers of the petitioner, it is ordered that if the petitioner furnishes bank guarantee for the amount demanded in Ext.P4, the goods will be forthwith released to the petitioner. The adjudication process will be completed within two months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above leaving open all the contentions of the petitioner. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE