IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 WP(C).No. 35145 of 2010(P) -------------------------- PETITIONER(S): ---------------------- ELANKOVAN, ELANKOVAN AGENCIES, PANDIARAJAN BUILDING, 41, BHAGAVATHI AMMAN KOIL STREET, THENNI-625 535. BY ADV. SRI.K.REGHU KOTTAPPURAM RESPONDENT(S): ------------------------ 1. THE SALES TAX INSPECTOR, THE SALES TAX CHECK POST, KARUKUTTY, KOZHIKODE. 2. THE DEPUTY COMMISSIONER (ENQUIRY), COMMERCIAL TAXES, MATTANCHERRY, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONER OF COMMERCIAL TAX, SALES TAX COMPLEX, THEVARA, ERNAKULAM. 4. THE SECRETARY TO GOVT., TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt C.K.ABDUL REHIM, J. -------------------------------- W.P.(C)No. 35145 of 2010 ----------------------------------------------- DATED: 24th day of November, 2010 JUDGMENT Petitioner is a registered dealer under the provisions of the Central Sales Tax Act (CST Act) and the Value Added Tax Act of Tamil Nadu State (TNVAT Act). He was also a registered dealer under the erstwhile Tamil Nadu General Sales Tax Act (TNGST Act). The petitioner is approaching this Court aggrieved by Ext.P5 notice and the proceedings initiated under Section 47(2) of Kerala Value Added Tax Act, issued consequent to interception of consignments of Soda Ash transported by the petitioner from Kochi Port to Madurai in Tamil Nadu State. At the time of detention of the consignments, the petitioner was compelled to make payment of security deposit to the tune of Rs.58,589/-, as evidenced from Ext.P7 receipt. The detailed goods along with the vehicle was released on the basis of Ext.P6 proceedings of the 1st respondent. 2. Contention of the petitioner is that the detention of the transport and the proceedings initiated under Section 47 was totally unwarranted and unreasonable. According to the W.P.(C)No. 35145 of 2010 2 petitioner, the transport in question was made only on the basis of transit pass issued and there was no transaction which attracts any levy of tax under the provisions of the Kerala Value Added Tax Act. Therefore, the petitioner is totally refuting the allegations contended in the Ext.P5 notice. 3. Going by the scheme of the provisions contained in Section 47 of the Kerala Value Added Tax Act, it is evident that any detention effected under Section 47(2) of the Act need be followed by an enquiry to be conducted by the competent authority authorised under Sub Section (5) of Section 47. The detaining officer should submit the connected records to the authorised officer for the purpose of conducting necessary enquiry in the manner prescribed. Sub Section (6) envisages an enquiry to be conducted by the authorised officer, after affording proper opportunity to the party concerned, and to take a decision as to whether there was any attempt in evacuation of payment of tax and as to whether the party is liable to be imposed with penalty. The petitioner is always at liberty to raise all contentions before the authorised officer including the contention that the detention was not warranted and the transport in question does not attract any levy under the Kerala Value Added Tax Act. It is W.P.(C)No. 35145 of 2010 3 free for the petitioner to take contentions before that authority to the effect that, the transport was accompanied by all documents as required under the statute and circulars issued in this regard. 4. Under the above mentioned circumstances, I am of the view that the petitioner can be relegated to the process of enquiry to be conducted by the authorised officer as provided under Section 47(5) and 6. It is made clear that the petitioner will be at liberty to take all contentions available, including the contention that the detention itself was totally without jurisdiction. 5. Under the above circumstances, this writ petition is disposed of directing the 2nd respondent, who is the competent authority, to finalise the enquiry pursuant to Exts.P5 and P6, after affording an opportunity of hearing to the petitioner at the earliest possible at any rate within one month of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. dmb