IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 15979 of 2010(V) -------------------------- PETITIONERS: --------------- 1. CONSOLIDATED CONSTRUCTION CONSORTIUM LTD KNFRA FILM AND VIDEO PARK, SAINIK SCHOOL POST, CHANTHAVILA, KAZHAKOOTTAM, THIRUVANANTHAPURAM. REPRESENTED BY ITS SENIOR EXECUTIVE (ACCOUNTS), K.RAGHURAMAN. 2. SCHWING STETTER INDIA PVT.LTD., 35/1015, C & C1, VEEYAM TOWERS, M.K.K.NAIR ROAD, PALARIVATTOM, KOCHI, REPRESENTED BY ITS ASSISTANT MANAGER (SALES), SREEKUMAR.G. BY ADV. MR. A.KUMAR RESPONDENT: --------------- THE INTELLIGENCE INSPECTOR, COMMERCIAL TAX CHECK POST, AMARAVILA. BY GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 15979 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 26th day of May, 2010 JUDGMENT The petitioners are challenging the correctness and sustainability of Ext.P7 notice issued under Section 47 (2) of the KVAT Act, whereby the goods transported by the petitioner to the work site at Trivandrum have been detained by the respondents. 2. The defects noted in Ext.P7 are as follows : "As per the records the transport is apparent to be stock transfer M/s CCC Ltd. Chennai to TVPM. The D/N accompanied to transport is defective. Since the name and address of the consignee is not recorded in the D/N. The TIN No. noted against the column verified and found no such dealer having that TIN No. is now existent in Kerala. Moreover the purpose of transport is not identifiable. Since the column No. 8 of the accompany D/N is unfill/marked. The item of transport is brand new machine.". 3. The learned counsel for the petitioners submits that the transportation was fully supported with relevant documents contemplated under the relevant provisions and that absolutely no reliance could have been placed in the 'delivery note' since it is not a stock transfer, but an 'interstate sale' as revealed from the records. The learned counsel also places reliance on Ext.P4 'invoice', wherein W.P. (C) No. 15979 of 2010 : 2 : the necessary particulars have been given, showing that, the buyer though a company situated in the State of Tamil Nadu, the delivery was to be effected at the site at Trivandrum. It was after placing the order by the first petitioner, that the second petitioner(seller) despatched materials, which were being transported on the strength of said documents, to the destination at Trivandrum and it was at this point of time, that the same was intercepted by the respondent issuing Ext.P7, which is under challenge. It is also pointed out that, in response to Ext.P7, second petitioner has submitted a detailed reply as borne by Ext.P8 before the respondent, but that has as not been properly considered by the respondent. 4. The learned Government Pleader appearing for the respondent submits that, the documents produced by the petitioner in support of the case do not reconcile with each other and that the detention made by the respondent suspecting evasion of tax is perfectly within the 4 walls of the law, in so far as the defects/mistakes in the 'delivery note' rather stand admitted, though it is now stated that the 'delivery note' could be ignored, being an interstate sale. 5. It is brought to the notice of this Court that in Ext.P4 invoice, the 'buyer' is admittedly shown as the first petitioner in Tamil Nadu and as such, it is contended that the sale is already complete and concluded in the State of Tamil Nadu. It is pointed out by the learned W.P. (C) No. 15979 of 2010 : 3 : Government Pleader that, by virtue of the nature of contract being undertaken by the petitioner, particularly in connection with 'Air conditioning works', the goods transported are entirely different nature and class; which contention is seriously disputed from the part of the petitioner. With reference to Ext.P6 'delivery note', it is stated that the name of the 'consignee' is not given and some other defects such as; TIN given is that of registration under the Tamil Nadu VAT Act; column No.8 is not filled up; time of commencement of journey is not mentioned; 'double sided' carbon is not used while preparing the delivery note etc. are also pointed out, stating that all these will constitute clear infringement of Section 58 (16) of KVAT Act. 6. The learned counsel for the petitioner, placing reliance on Ext.P4 / P4A invoices stated that, in the invoices, apart from showing the name and address of the 'seller' as well the 'buyer' situated in Tamil Nadu, the consignee's name has correctly shown as the first petitioner company having the work site at Trivandrum and thus seeks to sustain the contentions, praying for immediate release of the goods detained. 7. Considering the rival submissions, this Court finds that the facts and figures regarding the nature of transport have to be finalized in proper adjudication proceedings in the due course. However, this Court does not find it necessary to detain the goods any further and that the same can be released to the petitioner, on condition that, the W.P. (C) No. 15979 of 2010 : 4 : petitioner satisfies 50% of the liability shown as security deposit in Ext.P7, either in the form of 'cash' or 'bank guarantee' and executes a 'personal bond' for the balance amount; on which event, the goods detained as per Ext.P7 shall be released to the petitioner forthwith. This will be without prejudice to the rights and interests of the respondent to pursue the adjudication proceedings, if any and the same shall be finalized in accordance with 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. It is made clear this Court has not expressed any opinion as to the merits of the case, with regard to the rival contentions. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd