IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 25296 of 2009(F) -------------------------- PETITIONER(S): --------------- M/S.HCL COMNET LTD., 806, SIDHARTH, 96, NEHRU PLACE, NEW DELHI-19-REPRESENTED BY ITS DEPUTY MANAGER SRI.SREERANJ.E.S., RESIDING AT 'SUVINYA' LANE, JANATHA ROAD, VYTTILA- KOCHI-682 019. BY ADV. SRI.K.G.ANIL BABU RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, MUTHANGA, WAYNAD DISTRICT. 2. THE DEPUTY COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, WAYNAD. BY GOVERNMENT PLEADER SRI.C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).25296/09 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF NOTICE DT.2.8.2009 EXT.P2:- COPY OF CONTRACT DT.24.12.07 AND 14.1.09 A/W THE TERMS AND CONDITIONS. EXT.P3:- COPY OF THE ORIGINAL TAX PAID LEASE INVOICE. EXT.P3(A):- COPY OF THE ORIGINAL TAX PAID LEASE INVOICE. EXT.P3(B):- COPY OF THE ORIGINAL TAX PAID LEASE INVOICE. EXT.P3(C):- COPY OF THE ORIGINAL TAX PAID LEASE INVOICE. EXT.P3(D):- COPY OF THE ORIGINAL TAX PAID LEASE INVOICE. EXT.P4:- COPY OF DECLARATION BY THE CONSIGNEE. EXT.P5:- COPY OF DELIVERY CHALLAN FOR OPERATING LEASE. EXT.P5(A):- COPY OF DELIVERY CHALLAN FOR OPERATING LEASE. EXT.P5(B):- COPY OF DELIVERY CHALLAN FOR OPERATING LEASE. EXT.P5(C):- COPY OF DELIVERY CHALLAN FOR OPERATING LEASE. EXT.P5(D):- COPY OF DELIVERY CHALLAN FOR OPERATING LEASE. EXT.P6:- COPY OF THE ORIGINAL CERTIFICATE OF OWNERSHIP IN FORM 16. EXT.P6(A):- COPY OF THE ORIGINAL CERTIFICATE OF OWNERSHIP IN FORM 16. EXT.P6(B):- COPY OF THE ORIGINAL CERTIFICATE OF OWNERSHIP IN FORM 16. EXT.P6(C):- COPY OF THE ORIGINAL CERTIFICATE OF OWNERSHIP IN FORM 16. EXT.P6(D):- COPY OF THE ORIGINAL CERTIFICATE OF OWNERSHIP IN FORM 16. EXT.P7:- COPY OF CST REGISTRATION CERTIFICATE. EXT.P8:- COPY OF REPLY DT. 10.8.09. EXT.P9:- COPY OF LETTER DT.16.8.09 EXT.P10:- COPY OF CERTIFICATE ISSUED BY UBI DT.27.8.09. RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.25296 OF 2009 ------------------------------ Dated this the 7th day of September, 2009 J U D G M E N T ---------------------- 1. I.T.related products and Net work equipments transported by the petitioner, to be installed at various branches of the Union Bank of India, allegedly on the basis of Ext.P2 contract entered by the petitioner with Bank, is detained enroute by the 1st respondent under Section 47(2) of the KVAT Act. Ext.P1 notice is issued demanding payment of the security to the tune of Rs.1,90,525/-. According to the petitioner there is no sale of the goods effected within the State, on the other hand the equipments transported are intended to be installed and operated by the petitioner themselves at various branches of the Bank. 2. The learned Government Pleader on the other hand submits that, going by the provisions contained in the Explanation No:V of Section 2(XLIII) of the Kerala Value Added Tax Act, and Section 2(g) of the Central Sales Tax Act, there involves transfer of right to use the goods by the Bank and therefore it will come within the purview of the sale exigible to tax. The above contention is opposed by the learned counsel for the petitioner on the ground that the usage is by the petitioner W.P.(C).25296/09-F 2 only and there is no transfer of usage. 3. However since the question whether there was any attempt on evasion of tax need be decided by the appropriate adjudicating authority, I am not entering into any finding regarding that aspect. The goods under transport is now detained demanding payment of security. The petitioner also disputes the value estimated in Ext.P1 notice and also the addition of gross profit. It is contended that the total value of the goods as per Bill, mentioned in Ext.P1 is Rs.6,85,960/- only. 4. Under the above circumstances the writ petition is disposed of directing the 1st respondent to release the goods and the vehicle detained under Ext.P1 notice on the petitioner furnishing Bank Guarantee for double the amount of tax calculated at 4% on the value of goods at Rs.6,85,960/-. The adjudicating authority concerned will thereupon take steps to decide the matter after affording appropriate opportunity to the petitioner, as early as possible, at any rate within two months from release of the goods. C.K.ABDUL REHIM, JUDGE. okb