IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 WP(C).No. 31480 of 2010(H) -------------------------- PETITIONER: ------------------- M/S.NATIONAL TRADES & AGENCIES, NTA CHAMBERS, HINA HOUSE, WILLINGDON ISLAND, COCHIN-682 003, REPRESENTED BY ITS PARTNER GEORGE XAVIER. BY ADV. SRI.C.K.SREEJITH RESPONDENTS: ---------------------- 1. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR 695122. 2. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAX CHECK POST, WALAYAR 695122. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAX CHECK POST, WALAYAR 695122. 4. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX FACILITATION CENTRE, WILLINGDON ISLAND, COCHIN-682003. 5. GOVERNMENT OF KERALA, REPRESENTED BY THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM 695001. 6. M/S.SURFAIR EXPRESS CARGO & LOGISTICS, R 33/1634 C, THAIKAVU ROAD, VENNALA, KOCHI-682 028. BY GOVT. PLEADER, SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 31480 OF 2010 ------------------------------------ Dated this the 15th day of October, 2010 JUDGMENT Challenge in this Writ Petition is against proceedings initiated under Section 47 (2) of the Kerala Value Added Tax Act, 2003 (KVAT Act). The petitioner is a clearing agent who had forwarded electronic goods imported from Taiwan at the coastal port of Cochin, to Bangalore. It is evident that the transport was accompanied with a declaration issued in form No. 8 FA. The reason for detention mentioned in Ext.P9 is that the consignee was not a registered dealer in Kerala and the transport was not accompanied by proper documents such as permit from the Commercial Tax Facilitation Centre, Willington Island, Cochin. It is further stated that the documents which accompanied the transport was not capable of proving the genuineness of the claim regarding import. Therefore, suspecting genuineness of he transport and evasion in payment of tax, security deposit was 2 WP(C) No. 31480/2010 demanded. 2. According to the petitioner the goods were imported at Cochin Port under the cover of invoice issued by the dealer at Taiwan. The goods were intended to M/s. O/E/N/ India Ltd. Bangalore and the said fact was evident from the Bill of Lading. The petitioner had also produced the Bill of Entry and further documents pertaining to the import. It is submitted that the transit pass issued under Section 48 in Form No. 7 B was also appended along with the documents. But the said document was missing from the custody of the transporter and the same could not be produced at the time when the vehicle was intercepted. 3. Learned Government Pleader appearing on behalf of the respondents submitted that the transport was effected without proper documents and the document which accompanied the transport was not enough to prove that the transaction was in the course of import. It is further pointed out that neither the petitioner nor the consignee in Bangalore is 3 WP(C) No. 31480/2010 a registered dealer within the state and therefore payment of security deposit need be insisted. 4. The question whether the transport was genuine and whether there was any attempt in evasion of payment of tax are matters which need be enquired by the concerned authority under Section 47. I am of the opinion that pending finalisation of the enquiry the goods need not be detained, provided the petitioner furnishes appropriate security. 5. Under the above circumstances, the Writ Petition is disposed of directing the first respondent to release the goods along with the vehicle which is detained under Ext.P9, on the petitioner furnishing Bank Guarantee for the amount of security deposit demanded thereunder. 6. The competent enquiry officer will 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