IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 WP(C).No. 35851 of 2010(F) -------------------------- PETITIONER: ------------------ V.VAIKUNDA SEKHAR, PROPRIETOR, M/S.AYYA VAIKUNDAR TRADERS, VANDANOOR, PERUMBALUTHOOR P.O., MARANALLOOR, THIRUVANANTHAPURAM DISTRICT-695 126. BY ADVS. DRI. K.B.MOHAMEDKUTTY (SR) SRI.FIROZ K.M. RESPONDENT: -------------------- THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAXES CHECK POST, NEW MAHE, KERALA 673310. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 35851 OF 2010 ------------------------------------- Dated this the 1st day of December, 2010 JUDGMENT Challenge in this Writ Petition is against detention of a consignment of 'fishing rope' purchased by the petitioner and transported to the State of Kerala. The transport was intercepted on issuing Ext.P3 notice under Section 47 (2) of the Kerala Value Added Tax Act, 2003 (KVAT Act). The reason for detention mentioned is that, on physical verification the goods was found to be 'plastic ropes' and not 'fishing ropes' as mentioned in the accompanying documents. 2. 'Fishing rope' is an item exempted under Entry 18 of the 1st Schedule of the KVAT Act having HSN Code No. 5607.49.00, whereas the 'plastic rope' is an item which is taxable at the rate of 12.5%. On the basis of the allegation that the commodity under transport is different, the respondent suspected evasion in payment of 2 WP(C) No. 35851/2010 tax and therefore security deposit was demanded. 3. All the documents which accompanied the transport revealed that the item purchased and transported is “P.P. (Polypropylene) fishing rope”. It is contended by counsel appearing for the petitioner that, the allegation raised by the respondent that the commodity is different, is without any basis. 4. Learned Government Pleader on the other hand, submitted that on physical verification the authority became convinced that the rope in question is not one being used for fishing purposes and it will not fall within the description of the category under the relevant code. 5. Question as to whether there was any attempt in evasion of payment of tax is a matter need be decided on finalising the enquiry. It is brought to my notice that the petitioner is a registered dealer, regularly paying tax. Therefore I am of the view that the goods can be released pending finalisation of the enquiry on the petitioner 3 WP(C) No. 35851/2010 furnishing security. 6. In the result, the Writ Petition is disposed of directing the respondent to release the goods along with vehicle detained under Ext.P3 notice, on the petitioner furnishing security bond in the form prescribed under KVAT Rules, without sureties, for the value demanded in Ext.P3. 7. At the time of release of the goods respondent is directed to keep a small piece of the rope as sample for the purpose of verification at the time of enquiry. 8. The competent authority under Section 47 is directed to finalise the enquiry after affording an opportunity of hearing to the petitioner at the earliest possible, at any rate within a period of six weeks from the date of release of the goods. C.K. ABDUL REHIM JUDGE dnc