IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 25057 of 2008(G) -------------------------- PETITIONER: ------------------ RAKESH KUMAR, S/O. RADHESHYAM, 10O GRAM WARD NO.3, AMAHA VASUDEV TEHSIL HANUMA, DIST. REWA, MADHYA PRADESH. BY ADV. SRI.SAIGI JACOB PALATTY RESPONDENTS: --------------------- 1. THE INTELLIGENCE OFFICER - 1, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE), DEPARTMENT OF COMMERCIAL TAXES, THRISSUR -4. 2. THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE), DEPARTMENT OF COMMERCIAL TAXES, THRISSUR-4. 3. K.F. JAMES, S/O. FRANCIS, KATTUPARAMBIL HOUSE, MANNEMPETTA.P.O, ALAGAPPA NAGR, THRISSUR. 4. K.R. MOHANAN, S/O. RAMAKRISHNAN, KADAYIL HOUSE, KOORKENCHERY.P.O, THRISSUR. 5. K.H. BADARUDEEN, KALAKKAT HOUSE, TRICHUR. BY SPL. GOVT. PLEADER SRI.VINOD CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN,J. ------------------------- W.P ( C) No.25057 of 2008 -------------------------- Dated this the 21st August, 2008 J U D G M E N T The petitioner has filed this writ petition challenging Exhibit P5 notice and Exhibit P7 order passed by the first respondent, Exhibit P8 sale notice issued by the first respondent and Exhibit P10 order passed by the Deputy Commissioner (Appeals), Commercial Taxes, Ernakulam. confirming Exhibit P7. By Exhibit P7, the first respondent ordered seizure and confiscation of 84 bags of pepper which was attempted to be transported under bogus documents. The first respondent has in Exhibit P7 found as follows: “11. The deposition of the claimants were examined by me in detail. The claimants stated that they are not the real owner of the 84 bags of pepper detained from the Thrissur Railway Station on 26.4.2008. They deposed that the detained goods belong to one Mr.Rakesh Bhai/Bablu Bhai. My local enquiry also revealed that, the owner of the goods detained is Sh.Rakesh Bhai, who is working as an agent of a dealer at Varanasi. Their identity is not available. Copy of Manifest received from Railway revealed that, Black pepper has been W.P ( C) No.25057 of 2008 2 smuggling out of state through Train No.6359, in each week with the connivance of Noble Cargo, Carrier, the lease holder. The claimants are also not aware of the details of Rakesh Bhai/Bablu Bhai. Sh. Rakesh Bhai booked the 84 bags of pepper on behalf of the claimants. Since identity of a keralite was necessary to book the consignment, the claimants provided their copy of the identity card to Sh. Rakesh Bhai for booking. They are not aware of the consignee at Varanasi. The Railway receipt issued by the Noble Cargo Carrier also did not disclose the consignee at Varanasi. The address of the consignee is shown as “self” in the railway receipt. The claimants also failed to produce the original of the Railway receipt. They admitted that the original of the railway receipt is with Sh. Rakesh Bhai, since the goods are booked by him. 12. The above said facts proved beyond doubt that the claimants are not the real owner of the 84 bags of pepper detained from Thrissur Railway Station as per Mahazar dated 26.4.2008. The real owner of the goods are Shr.Rakesh Bhai/Sh.Bablu Bhai, who are unidentifiable. The claimants are bogus and they have no ownership with the goods detained. Hence the claim of the claimants with regard to the ownership of the 84 bags pepper detained from Thrissur Railway Station on 26.4.2008 is hereby rejected.” 2. In the light of the said finding, the first respondent ordered as follows: For the above said reasons, the claim of Sh. K.F. James, Sh. K.R Mohanan and Sh. K.H. Badarudeen with regard to the 84 bags of W.P ( C) No.25057 of 2008 3 pepper weighing 5460 Kg (including weight of the gunny bags) detained from Thrissur Railway Station on 26.4.2008 is rejected and in pursuance of powers conferred on me under Sec.47 (16) of the KVAT Act 2003 the said pepper bags weighing 5460 Kg. (including weight of the gunny bags) is hereby ordered to be seized and confiscated.” 3. In the proceedings before the first respondent the petitioner claimed that he is the real owner of the goods. One of the circumstances noticed by the first respondent was that consignment was improperly and illegally booked by respondents 3 to 5. From the materials on record, the first respondent came to the conclusion that the petitioner is the real owner of the goods. Thereafter, Exhibit P8 tender notice was issued proposing to sell the seized pepper in public auction on 7.7.2008. The petitioner thereupon moved this Court by filing W.P(C) No.20044 of 2008. On the premise that the petitioner is a registered dealer (the finding in Exhibit P7 is otherwise) this Court disposed of the said writ petition reserving liberty with petitioner to file an appeal from Exhibit P7 before the Deputy Commissioner (Appeals) invoking Section 55 of the Kerala Value Added Tax Act, 2003. The W.P ( C) No.25057 of 2008 4 petitioner was also directed to file an appeal within two weeks. There was also a further direction that till orders are passed in the appeal, the auction sale of the goods seized and confiscated as per Exhibit P7 will be kept in abeyance. As directed by this Court, the petitioner moved the Deputy Commissioner (Appeals). He was heard and by Ext.P10 order passed on 4.8.2008, the Deputy Commissioner (Appeals), Commercial Taxes, Ernakulam rejected the appeal. The Deputy Commissioner (Appeals) held that the transportation of the pepper was under bogus documents and that the first respondent had acted correctly and in accordance with law when he passed the order impugned in the appeal. The learned counsel appearing for the petitioner contends that the orders passed by the first respondent and the Deputy Commissioner (Appeals) are unsustainable in law. According to the learned counsel for the petitioner, the said authorities, erred in law in proceeding on the basis that what was applicable to the case on hand was Section 47 of the Kerala Value Added Tax Act,2003. According to the W.P ( C) No.25057 of 2008 5 learned counsel for the petitioner the case on hand is governed by Section 49 of the Kerala Value Added Tax Act, 2003 and therefore the authorities erred in ordering confiscation under Section 47 of the said Act. Per contra, the learned Special Government Pleader appearing for the revenue submitted that the transaction in the case on hand is governed by Section 47 and that the finding of fact arrived at the competent authority that the goods in question were transported under bogus documents by unidentifiable persons and upheld by the appellate authority cannot be interfered with by this Court exercising jurisdiction under Article 226 of the Constitution of India. It was contended that in view of the concurrent findings of fact, this Court would not be justified in entertaining the writ petition. The learned Special Government Pleader appearing for the Revenue also contended that petitioner has an effective and efficacious alternative remedy and can move the Tribunal invoking Section 60 of the Kerala Valud Added Tax Act,2003. It is also brought to my notice that the Tribunal is competent to pass interim orders regarding W.P ( C) No.25057 of 2008 6 disposal of seized goods. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The first respondent has on an elaborate consideration of the various aspects of the issue arrived at a finding in Exhibit P7 that the transaction in the case on hand is one governed by Section 47 of the Kerala Value Added Tax Act. He has relied on materials on record and the claims and contentions of the petitioner to hold that the transaction in question was a transaction under bogus documents by an unidentifiable person. The first respondent has also noticed that the petitioner is not a registered dealer either in the State of Kerala or in the State of Madhya Pradesh. It was also noticed that even according to the petitioner, he is only an agent of a dealer. The name of the dealer is also not forthcoming. It is also not stated whether that dealer is a registered dealer. I am, therefore, of the considered opinion that the finding of fact arrived at by the first respondent in Exhibit P1 and upheld in Exhibit-P10 cannot be said to be perverse so as to warrant interference. W.P ( C) No.25057 of 2008 7 6. For the reasons stated above, I am not persuaded to accept the contention advanced by the learned counsel for the petitioner that the authorities erred in referring to and relying on Section 47 of the Kerala Value Added Tax Act and in passing the orders impugned in this writ petition. Further, under Section 60 of the Act, the petitioner has an equally efficacious alternate remedy. In the result, the writ fails and it is dismissed without prejudice to the right of the petitioner to move the Tribunal under Section 60 of the Act. In the meanwhile, if the goods seized and confiscated as per Ext.P7 are sold in auction , it will open to the petitioner to participate in the said auction, if he is willing to adhere to the terms and conditions of the auction sale. (P.N.RAVINDRAN, JUDGE) ma W.P ( C) No.25057 of 2008 8 W.P ( C) No.25057 of 2008 9 W.P ( C) No.25057 of 2008 10