IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WA.No. 1856 of 2011 --------------------- AGAINST THE JUDGEMENT IN WPC.28285/2011 Dated 24/10/2011 .................... APPELLANT/: PETITIONES IN W.P(C) ---------------------------------- KARUTHIRUMAN .R DOOR NO. 13/25 A,PANICKAN KUDIYIRUPP, PUTHALAM P.O, KANYAKUMARI DISTRICT. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN RESPONDENTS: 2ND PETITIONER IN WP (C) --------------------------------------- 1. THE INTELLIGENCE INSPECTOR, SQUARD NO.1 COMMERCIAL TAXES, ALAPPUZHA- 688 001. 2. SADIQALI E, ERATTUTHODI EARTHMOVERS, GOODALAI, KALPETTA-673 121. BY SPECIAL GOVT. PLEADLER DR. SEBASTIAN CHEMPAPILLY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR, & K. VINOD CHANDRAN, JJ ========================== W.A. NO. 1856 OF 2011 ========================== Dated this the 8th day of December , 2011 JUDGMENT C.N. Ramachandran Nair , J Heard the learned counsel for the appellant and the Special Government Pleader for respondents. After hearing both sides, we are satisfied that the JCB brought is over valued because its original value is Rs.25 lakhs and it is now over an year old. Secondly if there is no sale of the machinery, then the question to be considered is only tax liability for the transfer or right to use the goods which is obviously brought on hire by the party in the State. These matters are to be certainly gone into by the adjudicating authority. However, having regard to the fact that the machine is lying idle and also the nature of liability that may fall on the appellants, we allow the Writ appeal by modifying WA 1856/2011 : 2 : the judgment of the learned Single Judge by directing the respondents to release the goods on payment of security amount of Rs.1,00,000/- (Rupees one lakh only) in cash. The appellant is free to furnish details of the operations of the equipment in Kerala after release, but before adjudication. The Adjudicating authorities will consider liability for tax and penalty, if any, depending on the nature of use. Adjudication will be taken up after three months from the date of release of the goods. If the appellant is filing returns and starts remitting tax on hire charges under the hire agreement, then it is for the respondent to consider whether the payment could be adjusted to tax and petitioner could be exonerated from penalty. C.N. RAMACHANDRAN NAIR (Judge) K. VINOD CHANDRAN (Judge) ks.