IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 WP(C).No. 1145 of 2011(P) -------------------------------------- PETITIONER(S): ------------------------ 1. JANATHA TRADING CO. 551/XVII (X-408), MARKET ROAD, THODUPUZHA, REPRESENTED BY ITS PARTNER PRASANTH.V. 2. SREEDHAREEYAM AYURVEDIC MEDICINES (P) LTD., NELIAKKATTU MANA, KIZHAKOMBU, KOOTHATTUKULAM, ERNAKULAM-686 662, REPRESENTED BY ITS AUTHORIZED SIGNATORY RAJAN N.NAMBOOTHIRI. BY ADV. SRI.A.KUMAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM-01. 3. COMMERCIAL TAX OFFICER, VAT OFFICE, DEPARTMENT OF COMMERCIAL TAXES, IST CIRCLE, THODUPUZHA-685 584. 4. COMMERCIAL TAX OFFICER, VAT OFFICE, DEPARTMENT OF COMMERCIAL TAXES, MUVATTUPUZHA-685 661. 5. COMMERCIAL TAX INSPECTOR, COMMERCIAL TAXES CHECK POST,FEROKE (PO), KOZHIKODE-673 631. R1 TO R5 BY GOVERNMENT PLEADER SRI. MOHAMMED RAFIQUE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2011 ALONG WITH OTAP NO.3 OF 2009 AND CONNECTED CASES, THE COURT ON 26/08/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.1145/2011 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REGISTRATION CERTIFICATE OF THE 1ST PETITIONER. P2: COPY OF THE REGISTRATION CERTIFICATE OF THE 2ND PETITIONER. P3: COPY OF THE ORDER IN CLARIFICATION APPLICATION PASSED BY THE COMMISSIONER. P4: COPY OF THE INTERIM ORDER DTD. 15/07/2010 IN OTA NO.9/2010. P5: COPY OF THE AGREEMENT OF FIRST PETITIONER WITH THE SECOND PETITIONER. P6: COPY OF THE INVOICE (ILLUSTRATIVELY). P7: COPY OF RELEVANT PAGES OF SRO NO.82/2006. P8: COPY OF THE INVOICE NO.SU 151 DTD. 30/12/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss g C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 1145 of 2011 --------------------------------- Dated this the 13th day of January, 2011 ORDER Heard counsel appearing for the petitioners as well as Government Pleader for respondents. It is noticed that the reason for detention is that the goods under transporter is classified as an item for which tax is leviable @ 12.5%, whereas the documents accompanied revealed payment of tax @ 4% only. 2. It is contended by the petitioner that against the clarification issued by the Commissioner of Commercial Taxes, under section 94 of the KVAT Act, the petitioner had filed OTA.No.9/2010 before this court and an interim order was granted staying operation of the order of clarification, as early as on 15.7.2010. Therefore the petitioner could not be compelled to make payment of tax at higher rate, as long as the stay order is in force. 3. On the above basis, contention of the petitioner is that the action initiated under section 47 (2) of the KVAT Act is totally without jurisdiction and the same is liable to be quashed. WP(C).1145/2011 2 4. Learned Government Pleader seeks time to get instructions and to file statement. Meanwhile the petitioner prays for an interim order for release of the goods and also for a direction to restrain the authorities from detaining any other future transport of the same category of goods. 5. Pending disposal of the above writ petition I am of the view that an interim order can be issued directing release of the goods subject to conditions. 6. The 5th respondent is directed to release the goods along with the vehicle detained under Ext.P9 notice, on the 1st petitioner furnishing a security bond for the value demanded therein, without sureties, in the form prescribed under the KVAT Rules. Post the matter for further consideration on 27.1.2011. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).1145/2011 3