IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 WP(C).No. 8332 of 2010(N) -------------------------------------- PETITIONER(S): ----------------------- M/S.BERGER PAINTS INDIA LTD., V.P.MARIKKAR ROAD, NEAR TOLL JUNCTION, EDAPPALLY, KOCHI-682 024, REPRESENTED BY ITS ADMINISTRATION OFFICER, P.GOPALAKRISHNA PILLAI. BY ADV. MR.TOMSON T.EMMANUEL RESPONDENT(S): ------------------------- 1. THE INTELLIGENCE INSPECTOR, SQUAD NO.1, COMMERCIAL TAXES, ERNAKULAM, COCHIN- 682 024. 2. THE ASSISTANT COMMISSIONER (ASSMT), COMMERCIAL TAXES, SPECIAL CIRCLE, MATTANCHERRY AT ALUVA. R1 & R2 BY GOVERNMENT PLEADER MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.R. RAMACHANDRA MENON, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.8332 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 15th day of March 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T The paints transported by the petitioner in the vehicle bearing registration No.KL07/BM 1998 were intercepted issuing Ext.P6 notice under Section 47(2) of the Kerala Value Added Tax Act (KVAT Act) on 7.3.2010, pointing out some discrepancies with regard to the actual number of items carried in the vehicle, which did not reconcile with the number of items given in the invoice, suspecting evasion of tax and demanding security deposit to the extent as specified therein. 2. Met with the said situation, the petitioner preferred Ext.P7 reply, pointing out the actual facts and figures and seeking to substantiate that there was no discrepancy at all. It was after considering the said explanation that a revised notice was issued on 9.3.2010 as borne by Exts.P8/P8(a), without any reason for the detention, which however, was W.P.(C).No.8332 of 2010 2 rectified later, as borne by Ext.P8(b). The learned counsel for the petitioner submits that the action pursued by the respondents are not correct or sustainable. 3. The learned Government Pleader appearing for the respondents submits on instruction that, there are some difference with regard to the goods actually carried and the description of the same in the documents. It is also stated that, the 'order number' as given in Ext.P3 varies with the 'order number' shown in Ext.P2/P2(a). The specific case of the petitioner is that, although orders were placed for large quantity, the party requested the petitioner to supply the items by lots, depending upon the requirement and it was accordingly that Ext.P2 invoice was issued, in respect of 1040 numbers of items to be supplied at the work site in Thiruvananthapuram. Later, it is said, because of some labour unrest, the consignee requested to despatch only 640 litres on 6.3.2010, which was also because of the inadequacy of storage space at the site of BPCL at W.P.(C).No.8332 of 2010 3 Kochuveli, Thiruvananthapuram where the painting work was being undertaken by the consignee. It was accordingly that 640 litres were despatched as covered by Ext.P4 delivery note on 6.3.2010. It is stated in the writ petition that the next day, the remaining 400 litres were also despatched and since it was a Sunday, the goods could not be accompanied by 'delivery note' and it was in the said circumstance, that Ext.P3 invoice was carried to support the transportation. 4. The explanation offered from the part of the petitioner, prima facie does not appear to be palatable for the reason that, when instruction was issued by the consignee to supply only 640 litres on 6.3.2010, because of the 'labour unrest' and 'inadequacy of space' to store the materials, what prompted to have given further instructions on the very same day, or the next day, to supply the balance 400 litres, remains obscure; which was stated as being honoured on 7.3.2010, on the strength of Ext.P3 invoice. W.P.(C).No.8332 of 2010 4 That apart, the learned Government Pleader appearing for the respondents pointed out that, 'delivery seal' dated 7.3.2010 has been affixed by the petitioner in Ext.P3 invoice, stating that the entire goods covered by Ext.P3 have been delivered on the said date. This being the position, the contention of the petitioner that, part of the item covered by Ext.P3 was delivered on 6.3.2010 and that the balance was being transported on 7.3.2010, which happened to be intercepted by issuing Ext.P6 notice is not liable to be accepted as such. The learned Government Pleader submits that the transportation of the goods covered by Ext.P6 is entirely a different consignment, unconnected with Ext.P3. This Court finds considerable force in the said submission, which however, can be ascertained only in the course of adjudication. However, this Court does not find it necessary to detain the vehicle and goods any further and the same can be released on condition that the petitioner satisfies the requirements W.P.(C).No.8332 of 2010 5 under Exts.P8(a),P8(b), furnishing the necessary security deposit to the extent as specified, either by 'bank guarantee' or by cash deposit. On satisfying the said requirement, the vehicle as well the goods shall be released to the petitioner forthwith. This will be without prejudice to the right of the respondents to pursue the adjudication proceedings, which shall be finalised in accordance with law, as expeditiously as possible, at any rate within 2 months from the date of receipt of a copy of this Judgment. The writ petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE nl