IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 WP(C).No. 28362 of 2008(B) -------------------------- PETITIONER(S): --------------- M/S.SILPI REALTORS & CONTRACTORS PVT.LTD PENTA SQUARE, M.G.ROAD, KOCHI-682035,REPRESENTED BY ITS MANAGING DIRECTOR F.EDISON. BY ADV. SRI.V.P.SUKUMAR RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, WALAYAR, PALAKKAD DISTRICT. 2. M/S.H & R JOHNSON (INDIA) LTD, 40/937, P.T.USHA ROAD, ERNAKULAM, KOCHI-682011. GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2008, ALONG WITH WPC NO. 30721 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF CERTIFICATE OF REGISTRAION. P2 COPY OF ORDER DT 10.9.08. P3 COPY OF PURCHASE ORDER DT 26.6.08. P4 COPY OF LETTER DT 12.8.08 P5 COPY OF INVOICE DT 14.9.08 P6 COPY OF NOTICE DT 17.9.08. P7 COPY OF LETTER DT 18.9.08 P8 COPY OF LETTER DT 19.9.08 P9 COPY OF NOTICE DT 20.9.08 // TRUE COPY // P.A. TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) Nos. 28362 and 30721 OF 2008 ```````````````````````````````````````````````````` Dated this the 3rd day of November, 2008 J U D G M E N T W.P.(C) No.28362/08 is filed by one Silpi Realtors & Contractors Pvt. Ltd.(hereinafter referred to as 'the consignee'). The petitioner in W.P.(C) No.30721/08 is one H & R Johnson India Ltd.(hereinafter referred to as 'the consignor'). The case of the consignee is that it is registered under the KVAT Act and it had CST registration which was cancelled with effect from 10.8.2008. It issued Ext.P3 dated 26.6.2008 placing the purchase order on the consignor. It is the further case that on 12.8.2008, by Ext.P4, it issued a letter to the consignor stating that its CST registration is cancelled with effect from 10.8.2008 and it requested to treat the orders as cancelled. Ext.P5 is the invoice cum delivery challan. When it reached the check post in Kerala, a notice was issued under section 47(16) of the KVAT Act calling upon to pay advance tax. Thereupon, the consignee alleged to have WPC.28362 & 30721/08 : 2 : issued letter dated 18.9.08 to the consignor asking to take back the goods by making necessary tax payments to the check post authorities. Accordingly, it is stated that by Ext.P8 dated 19.9.08 the consignor is alleged to have asked the Commercial Tax Inspector to withdraw the goods by paying necessary tax. Thereupon, Ext.P9 notice under section 47(2) of the KVAT Act is issued. It is stated therein as follows. “ The consignee is not authenticated to interstate purchase since the CST certificate of the consignee is already cancelled with effect from 10.8.08. Hence, value estimated and security deposit demanded in a sum of Rs.72,273/-.” 2. An interim order came to be passed by this court directing the officer to take a decision on Ext.P8. Thereupon, Ext.P10 order came to be passed and by the same, consignor has been permitted to remit the security deposit of Rs.72,273/- on behalf of the consignee and for getting release of the consignment. The consignor challenges Ext.P10 order which I have referred to. 3. I heard learned counsel for the petitioners and WPC.28362 & 30721/08 : 3 : learned Government Pleader. Learned counsel for the consignor Smt.K.Latha submits that the impugned order is illegal. Actually, this court had directed the request of the consignor to take back the goods on payment of advance tax alone to be considered and there is no basis to direct the deposit of security deposit. It is further contended that the petitioner has not committed any offence and section 47(2) is not attracted. Consignor submits that it may be treated as a branch transfer. Learned counsel for the consignee also attacked the same order(Ext.P10). He also submits that there is no basis to issue section 47(2) notice. He submits that the reason stated in Ext.P9 is not supported by section 47(2). The mere fact that a person does not have registration under CST Act does not mean that he cannot make interstate purchase, he contends. Learned Government Pleader, on the other hand, points out that a perusal of Ext.P5 invoice would show that it is prepared on the basis of the C-Form and on the basis that the consignee is registered under the CST Act. He would further point out that the consignor did not enter WPC.28362 & 30721/08 : 4 : appearance in the writ petition filed by the consignee. Learned Government Pleader also points out that even in the writ petition filed by the consignor, there is no case that the consignor has received intimation from the consignee cancelling the purchase order. 4. Having heard the parties, writ petition is disposed of as follows. Ext.P8 in the writ petition filed by the consignor will stand modified and the goods will be released to the consignor(i.e, the writ petitioner in W.P.(C) No.30721/08) upon the consignor paying advance tax and furnishing a simple bond for the amount demanded in the impugned order. The adjudication process will be completed within six weeks from the date of receipt of a copy of this judgment, after issuing notice to the consignor and the consignee. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE