IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 WP(C).No. 23029 of 2010(C) -------------------------- PETITIONER: --------------- M/S.WHIRLPOOL OF INDIA LTD., 23/61A, NH 47,SOUTH KALAMASSERRY,683 104, COCHIN,REPRESENTED BY IT'S BRANCH COMMERCIAL MANAGER MR.ASHOK.P. BY ADV. MS. K.LATHA RESPONDENTS: ----------------------- 1. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM. 2. ASSISTANT COMMISSIONER(ASSMT), COMMERCIAL TAXES, SPECIAL CIRCLE-11, ERNAKULAM. 3. INTELLIGENCE INSPECTOR, INTELLIGENCE SQUAD NO.111,COMMERCIAL TAXES,KOLLAM. BY SENIOR GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 23029 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 27th day of July, 2010 JUDGMENT The petitioner is aggrieved of the detention made by the respondents, issuing Ext. P6 series of notices under Section 47 (2) of the KVAT Act, doubting evasion of tax, demanding security deposit to the extent, as specified therein. 2. The main insinuating circumstance noted in Ext. P6 series of notices is that, Ext. P5 series of invoices show the address of the consignee as M/s Whirl Pool India Limited, 'C/o South Kerala Cashew Head Quarters Godown', Kollam, whereas according to the respondents, there is no such branch for the petitioner any where in Kollam with the C/o address of South Kerala Cashew Head Quarters Godown. The case projected by the petitioner in the Writ Petition is that, the petitioner is actually having a godown in Kollam and this fact has been endorsed in Ext. P4 Certificate of Registration as well (endorsed on 16.7.2010). In spite of explaining the position, the detention still continues; whereby quite a number of vehicles transporting loads of the consumer articles are detained, causing much loss and hardships to the petitioner. W.P. (C) No. 23029 of 2010 : 2 : 3. The learned counsel for the petitioner submits that, the petitioner is a law-abiding citizen, who is a registered dealer in Kerala and in view of the specific requirements for Onam season, an additional godown was taken on lease in Kollam and a branch was opened accordingly. Reliance is sought to be placed on Ext.P1 lease agreement dated 1.7.2010, whereby the godown shown in Ext. P4 Certificate of Registration is taken for a period of six months on lease. The address shown in Ext. P5 series invoices as 'C/o South Kerala cashew Head Quarters Godown' is stated as only a mistake. The learned counsel submits that, it was only to facilitate the concerned driver of the vehicles to locate the premises of the petitioner, which is stated as situated very near to 'M/s South Kerala Cashew Head Quarters Godown', that the address of the consignee was shown as above. It is stated that, the mistake occurred was at the hands of the concerned employees at Faridabad and Pune, which is rather 'technical' in nature and as such, there is absolutely no rhyme or reason for detaining the goods, casting huge liability on the petitioner, which is under challenge. 4. Heard the learned Government Pleader as well, who submits with reference to the materials on record that, the concerned premises, though were taken on lease as per Ext. P1 dated 1.7.2010, the same W.P. (C) No. 23029 of 2010 : 3 : was caused to be inspected by filing Ext. P2 application only on 16.7.2010. The inspection was completed and Ext. P3 'shop inspection report' was submitted only on 17.7.2010; followed by necessary endorsement caused to be effected on Ext. P4 Certificate of Registration, declaring the said premises as godown w.e.f. 16.7.2010. Ext. P5 series of invoices are of different dates ranging from 9.7.2010 to 13.7.2010. In other words, the destination (as to the place of consignee) was shown in Ext P5 series of invoices, even before causing the concerned premises to be inspected and obtaining necessary endorsement in the Certificate of Registration. In short, the said premise was not available to be shown, as on the date of Ext. P5 series invoices, on which day the materials were taken for transport. Further, since the godown shown in Ext. P4 Certificate of Registration is not the godown/destination shown in Ext. P5 series invoices, the genuineness of the transport is much to be doubted for evasion of tax; more so when the petitioner was much aware of the actual address of the godown taken on lease vide Ext. P1 on 1.7.2010 ie. much prior to the date of Ext. P5 invoices. To put it more clear, the wrong address given in Ext. P5 series invoices was a conscious act. The course and conduct pursued by the petitioner cannot but be deprecated, submits the learned Government Pleader, asserting that wrong mentioning of W.P. (C) No. 23029 of 2010 : 4 : the godown was with a specific intent to have the goods taken and sold elsewhere, without being accounted, during the Onam season, causing evasion of tax and this being the position, the detention made by the concerned respondents demanding security deposit is quite correct and sustainable and not assailable under any circumstances. 5. With regard to the alleged mistake stating that the same is only 'technical', the case of the petitioner is that, it is only because of the wrong description made by the concerned employees in Faridabad and Pune. But, the fact remains that, unless and until, the petitioner or any person acting for the petitioner furnished the wrong address to the concerned employees at Faridabad, such a stipulation showing the particular premises could not have been resulted in the invoices. That apart, 'South Kerala Cashew' is a separate establishment dealing with cashew business, who, according to the respondents have not let out any premises as godown to the petitioner. This being the position, this Court finds it difficult to accept the version of the petitioner, that, it is only a 'technical' mistake and the matter requires to be proved further. 6. The learned counsel for the petitioner submits that, it was only to locate the actual premise of the petitioner, which is stated as situated very close to the Head Quarters Godown of M/s South Kerala Cashew , that the 'C/o address' was shown as such, in Ext. P5 series invoices. W.P. (C) No. 23029 of 2010 : 5 : But, the petitioner has conceded in paragraph 2 of Writ Petition as : “this wrong address was nearly 8 Kms. away from the correct address of the petitioner's Kollam godown”. This being the position, the submission, prima facie, does not inspire confidence. 7. Considering the facts and circumstances, this Court finds that, this is a matter, which requires to be adjudicated by the concerned authorities in accordance with the relevant provisions of law. Taking note of the particular facts and circumstances, this Court permits the petitioner to have the goods and vehicles released on condition that, the petitioner satisfies 50% of the security deposit demanded in Ext. P6 series notices in the form of 'Bank Guarantee' and executes a 'simple bond' for the balance amount by the authorized signatory representing the petitioner company. This will be without prejudice to the rights and interests of the respondents to pursue adjudication proceedings, 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. 8. Since it is brought to the notice of this Court that, exactly similar invoices have been raised showing the destination point with the C/o address of “South Kerala Cashew Head Quarters Godown” and the goods are in transit in different vehicles (particulars of which are W.P. (C) No. 23029 of 2010 : 6 : stated as given in Ext. P7), similar course as now ordered by this Court shall be pursued by the departmental authorities for releasing the goods as and when intercepted, if the factual position is exactly similar and the adjudication shall be finalized within two months as in the instant case. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd