IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 17663 of 2008(C) ----------------------------------------------- PETITIONERS: -------------------- 1. MESSRS. T.M.SALES CORPORATION, COLLEGE JUNCTION, PULAMON P.O. KOTTARAKARA, REPRESENTED BY PROPRIETOR MR.BAVA DANIEL. 2. NITCO TILES LIMITED, VILLAGE SHRIGAON, POST POYNAD, TALUK ALIBAG, DISTRICT REIGAD, MAHARASHTRA AND HAVING ITS OFFICE AT MADHUSILA CHAMBERS, NO.50/390, B & C PALACE ROAD JUNCTION, N.H.EDAPPALLY, ERNAKULAM - 682 024. BY ADV. SRI.A.KUMAR RESPONDENT: -------------------- THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, ARYANKAVU P.O., KOLLAM. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2008 ALONG WITH WP(C). NO.17664/08, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NOS. 17663/08C & 17664/08 C -------------------------------------- Dated this the 16th June, 2008 JUDGMENT In both these Writ Petitions, petitioners call in question Ext.P1 which are issued detaining the goods in question in exercise of the powers under Section 47(2) of the Kerala Value Added Tax Act, 2003. The reason for the detention is that the goods were not accompanied by the transporter's copy. According to the petitioners, the said reason is technical and cannot be the basis for detention of the goods. Shri A. Kumar, learned counsel for the petitioners would submit that in fact the petitioners were prepared to produce it and even then, the transporter's copy was not accepted. He would submit that in respect of the goods which are the subject matter of these Writ Petitions, they are governed by the Circular issued under Section 47(16A) and advance tax is payable. Petitioners are prepared to pay the advance tax also, he submits. When petitioners are WPC. 17663 & 17664/08 2 prepared to pay advance tax and what was missing is only the transporter's copy, the detention cannot be sustained, he contends. Per contra, learned Government Pleader on instructions submits that the non-production of transporter's copy by the petitioners leading to the suspicion formed under Section 47(2) of the Act cannot be overturned in proceedings under Article 226 of the Constitution of India. He points out that a party without producing the transporter's copy, if he is allowed to transport the goods, he can indulge in various activities which will result in evasion of tax. He pointed out that the goods can be sent through a Parcel Service and it may not declare the goods. It can be transported through courier or by train by using the transporter's copy, he points out. The possibility of smuggling the same quantity of goods by using the transporter's copy cannot be ruled down, submits the Government Pleader. Joining issue with the Government Pleader, Shri A. Kumar, counsel for petitioners would point out that such possibilities are far-fetched and the apprehensions are WPC. 17663 & 17664/08 3 misplaced. He would submit that the transporter's copy is not a stand alone document. In other words, what he submits is that there has to be the original invoice. He further submits that, at any rate, petitioners are prepared to surrender the transporter's copy and the goods may be released to the petitioners. 2. Having considered the contentions of the parties, I feel that I need not extend the aid of this Court under Article 226 of the Constitution of India to the petitioners. Petitioners have not filed any written objections to the proposal under Section 47(2) of the Act. I feel that ordering release of the goods in favour of the petitioners, is not warranted. I cannot discount the possibilities which have been submitted by the Government Pleader. Anyway, that is a matter which has to be considered by the Authorities and that is a matter on which a final view is to be taken by the Authorities. In such circumstances, while rejecting the prayer of the petitioners to release the goods unconditionally, I direct, however, that if the petitioners furnish Bank Guarantee for the value demanded Ext.P1 impugned WPC. 17663 & 17664/08 4 notices, the goods shall be forthwith released to the petitioners. It is also open to the petitioners, on the other hand, to file objections to the detention, in which case the respondent will take a decision on the same in accordance with law, within a period of ten days from the date of receipt of a copy of this Judgment. The Writ Petitions are disposed of as above. K. M. JOSEPH, JUDGE kbk.