IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WP(C).No. 4139 of 2010(N) ------------------------- PETITIONER: --------------- M/S.KAZILA CERAMICS PVT. LTD., 19/102/A/1, M.G.ROAD, TIRUR, MALAPPURAM DISTRICT, REPRESENTED BY ITS DIRECTOR, ZAKKIR HUSSAIN. BY ADV. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE SRI.K.M.FIROZ RESPONDENT: --------------- THE INTELLIGENCE INSPECTOR, RAPID ACTION, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM, EDAPPALLY, KOCHI-24. BY GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.4139 of 2010-N ---------------------------- Dated this the 10th day of February, 2010. J U D G M E N T The petitioner is challenging the steps taken by the first respondent under Section 47(2) of the KVAT Act, whereby the vehicle as well as the goods belonging to the petitioner were intercepted and detained, suspecting evasion of tax; in turn demanding security deposit as specified in Ext.P3. 2. Dr.K.B.Mohamedkutty, the learned Senior Counsel appearing for the petitioner submits that the course and conduct pursued by the respondent is absolutely without any rhyme or reason and that the incriminating circumstance pointed out in Ext.P3 that there was no proof regarding payment of 'advance tax' is not at all correct or legally valid, in so far as the petitioner has never imported the goods concerned; that he had only purchased the goods from the importer, after paying tax at the rate of 12.5% and further that the importer themselves have already cleared the advance tax and the petitioner has procured copies of the necessary certificates issued in this regard. The learned Senior Counsel W.P(C) No.4139 of 2010-N 2 further submits that Ext.P4 series are the invoices in connection with the import of goods from Rajkot. Ext.P5 series are the relevant certificates with regard to the payment of 'advance tax' by the importer, which also refer to the number of 'Container', in which the goods were imported. The learned Senior Counsel also adds that the liability to pay the advance tax is very much upon the importer and not upon the dealers like the petitioner, who are effecting the sales in the State of Kerala by paying necessary tax at the rate of 12.5%. This being the position, the reason to detain the vehicle as shown in Ext.P3, for want of necessary proof of payment of advance tax, is actually contrary to the statutory prescriptions; submits the learned counsel. 3. The learned Government Pleader appearing for the respondents submits that copies of the documents produced as Exts.P4 and P5 were not available along with the goods transported, as discernible from the entries given in column No.9 of Ext.P3 and that the original invoice which was being carried along with the goods was Ext.P1 ie, the invoice issued by the petitioner in favour of the consignee. 4. However, taking note of the factual and legal position, W.P(C) No.4139 of 2010-N 3 particularly in the light of the documents produced as Exts.P4 and P5 substantiating the version put forth by the petitioner, this Court does not find it necessary to detain the goods as well as the vehicle any further and that the same could be released to the petitioner on executing a 'simple bond'. On satisfying the requirement as above, the vehicle as well as the goods detained as per Ext.P3 shall be released to the petitioner forth with. This will be without prejudice to the right of the respondent to pursue the adjudication proceedings, if any, as contemplated under Section 47(5) of the KVAT Act, which shall be finalised in accordance with law, of course after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. Sd/- P.R.RAMACHANDRA MENON JUDGE //True Copy// P.A to Judge ab