IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 WP(C).No. 24199 of 2010(Y) -------------------------- PETITIONER: --------------- M/S.HOTEL PRESIDENT, KURUPPAM ROAD, THRISSUR, A REGISTERED PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER, SRI.E.P.K.BALAKRISHNAN. BY ADV. SRI.E.P.GOVINDAN SMT.G.DEEPA RESPONDENTS: --------------- 1. THE INTELLIGENCE INSPECTOR, SQUAD NO.IV, COMMERCIAL TAXES, MATTANCHERRY. 2. INSPECTING ASSISTANT COMMISSIONER (INT.) COMMERCIAL TAXES, THRISSUR. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 4. INSPECTING ASSISTANT COMMISSIONER (COMMERCIAL TAXES), COMMERCIAL TAXES CHECKPOST, WALAYAR. BY SR. GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 24199 OF 2010 ......................................................................... Dated this the 4th August, 2010 J U D G M E N T The petitioner is stated as aggrieved of detention of the goods transported by the petitioner in the vehicle bearing No. KA.51/6838 when the same was intercepted by the first respondent on the way on 30.07.2010, issuing Ext. P1 notice under Section 47(2) KVAT Act, doubting evasion of tax and demanding security deposit to the extent specified therein. 2. The learned Counsel appearing for the petitioner submits that the petitioner, which is a registered partnership firm represented by its Managing Partner, is starting a Hotel Complex and it was in connection with the requirement of said Unit that bulk purchase of 55 numbers of Mattress was made and the said items were transported in the vehicle as above. The learned Counsel also submits that it is only an Inter-State purchase and that the sole defect pointed out in Ext.P1 that the consignee is W.P.(C) No. 24199 OF 2010 2 not a registered dealer under the KVAT Act is not a sufficient ground to warrant detention, which hence is sought to be intercepted. 3. Heard the learned Government Pleader as well, who submits with reference to the materials on record and undisputed facts that the petitioner is not a registered dealer; that the only document which accompanied the transport as given in Column No.9 of Ext.P1 was Ext. P2 invoice; that the particulars of the consignee as given in Ext.P2 invoice is only as “M/s.Hotel President, Thrissur' and that no 'TIN' has been given therein and further that no 'Form 16' was accompanying the transport, which is a mandatory requirement as provided under Rule 58(18) of the KVAT Rules. 4. The learned Counsel appearing for the petitioner submits that the petitioner can obtain registration under the Kerala Tax on Luxuries Act only after completing the works in connection with the construction and after procuring licence to be issued by the Local Authority, the time for which is still to come. It is in connection with the completion of construction work that the W.P.(C) No. 24199 OF 2010 3 required materials were sought to be procured and transported, when the interception was made by the first respondent. The learned Counsel also submits that as pointed out in paragraph No.5 of the Writ Petition that the petitioner had already entrusted the duly filled Certificate of ownership in Form 16 to be carried along with the goods, but the transporter failed to produce the same before the first respondent which was only due to an oversight or inadvertent mistake. The learned Counsel further submits that the matter might be caused to be enquired by the first respondent to ascertain the bonafides of the nature of the transport and that, if it is not to the satisfaction of the second respondent, the petitioner might be permitted to meet the demand in Ext. P1 by furnishing requisite Bank Guarantee to release the goods . 5. After hearing both the sides, the second respondent is directed to conduct an enquiry as to the genuineness of the transaction forthwith, subject to which the vehicle as well as the goods shall be released to the petitioner as expeditiously as possible at any rate within one week from the date of receipt of W.P.(C) No. 24199 OF 2010 4 a copy of the judgment. If for any reason, the second respondent finds that the transaction is doubtful, then the petitioner will be at liberty to furnish Bank Guarantee for the requisite amount of security deposit as demanded, on which event, the vehicle as well as the goods shall be released to the petitioner forthwith. In the latter case, it will be without prejudice to the rights and liberties of the respondents to pursue adjudication proceedings, which shall be finalised in accordance with the relevant provisions of law, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of the judgment. The 4th respondent is directed to forward all the relevant records to the second respondent forthwith, at any rate, within two days for further steps. The Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk W.P.(C) No. 24199 OF 2010 5