IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 22782 of 2009(P) -------------------------- PETITIONER: --------------- M/S.BLUE MOUNTAIN GRANITES, VELLIKULANGARA.P.O,THRISSUR DISTRICT REPRESENTED BY ITS MANAGING PARTNER MATHEW M.PATHOROSE,AGED 48 S/O.M.M.PATHROSE RESIDING AT MADAPPILLIL HOUSE, AMBUNAD,MALAYIDOMTHURUTH,KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.LELLULAL T.G.THUNDATHIL ADV. SRI.JULIUS SMITH RESPONDENT: --------------- THE COMMERCIAL TAX INSPECTOR,COMMERCIAL\ TAX CHECK POST,NEW MAHE,KANNUR DISTRICT. BY GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) 22782 OF 2009 ......................................................................... Dated this the 11th August, 2009 J U D G M E N T The petitioner is doing the business in crushing boulders and selling crushed granite metals and when he was transporting a particular machinery (Rock Breaker) in the vehicle bearing No.KL. 40C-1138, accompanied by Form 16 Certificate of Ownership stating that it was being shifted to their work site at Vellikulangara in Thrissur, the same was intercepted by the respondent, leading to issuance of Ext. P4 notice issued under Section 47(2) of the KVAT Act, pointing out several incriminating circumstances. 2. The learned Counsel for the petitioner submits with reference to Ext.P5 that, the insinuation made by the respondent vide Ext. P4 is not correct or sustainable as the machinery was never intended for sale and was accompanied by the Certificate of Ownership, as prescribed under the relevant provisions of law W.P.(C) 22782 OF 2009 2 and that no other document was liable to be carried by the transporter. It is also brought to the notice of this Court, with reference to Ext. P6 reply submitted by the petitioner in response to Ext. P4, that the machinery was actually intended to be given to the consignee for hire. It is also stated in the last paragraph of Ext. P6 that the petitioner was not a ' work contractor' and that the item was taken to the consignee only to facilitate a test run and to give it on hire. 3. Heard the learned Government Pleader as well, who submits that the explanation offered by the petitioner vide Ext. P6 cannot be taken without a pinch of salt in view of the diametrically opposite view/stand taken by the petitioner to justify the transport without valid documents. It is also pointed out that absolutely no material has been produced before this Court to prove the statement as to the alleged agreement executed between the petitioner and the consignee in connection with the case put forth with regard to the hire. 4. Yet another important aspect to be noted is that in Ext. P5 Certificate of Ownership, against Column No.7 as to the W.P.(C) 22782 OF 2009 3 purpose for which the goods are transported, it is shown as “Shifting to our work site”. While giving Ext. P6 reply dated 03.08.2009, on being confronted with the incriminating circumstances pointed out in Ext. P4, the petitioner has taken a different turn, whereby it is stated that the machinery was being taken to the consignee to be given on hire, pursuant to the trial run to be carried out . In other words, the original stand as reflected in Ext. P5 that it was being shifted to the Work Site of the petitioner has been given a go bye and a new case has been moulded to sustain the course of events. On this score itself, the explanation offered by the petitioner does not appear to be palatable. 5. However, this Court does not find it necessary to detain the vehicle as well as the goods at the place of interception. In the said circumstances, the respondent is directed to release the vehicle as well as the goods, forming the subject matter of Ext. P4 to the petitioner, on his depositing 50% of the amount shown in Ext.P4, either by Bank Guarantee or by cash and on furnishing a personal bond for the remaining 50%. The W.P.(C) 22782 OF 2009 4 petitioner shall also give an undertaking that the machinery involved will not be alienated or subjected to any charge or lien till adjudication proceedings pursuant to Ext. P4 is finalised. On satisfying the requirement, as above, the vehicle as well as the machinery shall be released to the petitioner forthwith. However, it is made clear that, this will be without prejudice to the right of the respondent to finalise the adjudication proceedings , which shall be pursued and finalised as expeditiously as possible and at any rate within two months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk