Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE13H DAY OF FEBRUARY201424TH MAGHA, 1935 WP(C).No. 4110 of 2014 (K) ------------------------------------- PETITIONER(S): ---------------------- CHAITHANYA PLYWOOD, VP.X/324-A, KANDANTHARA, ALLAPRA P.O. PERUMBAVOOR PIN:673 637, REPRESENTED BY ITS MANAGING PARTNER, A.M.MEERANKUNJU. BY ADVS.SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.UMAMAHESWAR RESPONDENT(S): ------------------------- 1. THE INTELLIGENCE OFFICER, SQUAD NO.1, COMMERCIAL TAXES, MATANCHERRY AT ALUVA, MINI CIVIL STATION, ALUVA-683 101.
2. COMMERCIAL TAX OFFICER, 2ND CIRCLE, PERUMBAVOOR, ERNAKULAM DISTRICT.
3. THE INSPECTING ASST. COMMISSIONER (INT.), COMMERCIAL TAXES, MATTANCHERRY AT MINIS CIVIL STATION, ALUVA-673 101. BY GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON1302-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ WP(C).No. 4110 of 2014 (K) ------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1: COPY OF REGISTRATION CERTIFICATE. EXHIBIT P2: COPY OF WEIGHMENT SLIP DATED251.2014. EXHIBIT2A): COPY OF INVOICE NO.088 DATED251.2014. EXHIBIT P2(B): COPY OF DELIVERY NOTE NO.32486 DATED261.2014. EXHIBIT P2(C): COPY OF ADVANCE TAX UTILISATION CERTIFICATE IN FORM8 DATED271.2014. EXHIBIT P3: COPY OF COPY OF THE LETTER DATED261.2014 OF THE IST RESPONDENT ADDRESSED TO THE SUB-INSPECTOR OF POLICE, PERUMBAVOOR. EXHIBIT P4: COPY OF NOTICE DATED251.2014 ISSUED BY THE3D RESPONDENT TO THE DRIVER OF THE VEHICLE. EXHIBIT P5: COPY OF REPLY DATED42.2014. EXHIBIT P6: COPY OF NOTICE DATED62.2014 ISSUED BY THE3D RESPONDENT TO THE PETITIONER. EXHIBIT P7: COPY OF REPLY DATED72.2014. RESPONDENT(S)' EXHIBITS --------------------------------------- NIL. / TRUE COPY P.S. TO JUDGE PJ P.R. RAMACHANDRA MENON, J.
--------------------------------------- W.P.C. No.4110 OF2014--------------------------------------- Dated this the 13th day of February, 2014. JUDGMENT
The petitioner is a manufacturer of Plywood and a dealer, both under the KVAT Act and CST Act. In the course of transit of plywood, loaded in the vehicle bearing No.MH FZ-4090, it was sought to be weighed at a weighbridge near the factory, when the vehicle was intercepted by the 1st respondent. Alleging that the transportation was being effected without any documents supposed to accompany the transit as enunciated Section 46(3) of the Kerala Value Added Tax Act, 2003, the vehicle was detained and thereafter, it was handed over to the police, because of the alleged smuggling activities; thus issuing Ext.P4 notice under Section 49(3) of the Kerala Value Added Tax Act, 2003.
2. The petitioner has approached this Court by way of this writ petition, seeking release of the vehicle stating that, no smuggling was ever committed by the petitioner, that the vehicle was taken to the nearby weighbridge as no such facility was W.P.C.No.4110 OF20142 available in the premises of the petitioner and that after effecting the weighment as borne by Ext.P2 weighment slip, in the course of taking the same to the premises of the petitioner for preparation of the Bill and such other necessary documents, the 1st respondent intervened and seized the vehicle, which according to the petitioner is not correct or proper and hence the challenge.
3. Heard the learned Government Pleader appearing for the respondents as well.
4. Going by the pleadings and proceedings, it is seen that, after interception and detention of the petitioner's vehicle, the concerned officers of the department were continuing the checking with regard to other instinces of transportation as well, and in the course of detention of another vehicle bearing No.MH1023395, the persons in control of the vehicle refused to co- operate and called somebody over mobile phone. Pursuant to this, some persons came to the spot and obstruction was caused to the performance of official duty. The turn of events, including surrender of mobile phones of the driver of the petitioner's vehicle bearing No.MH FZ-4090 is also specifically mentioned in W.P.C.No.4110 OF20143 Ext.P3 proceedings addressed to the concerned Sub Inspector of Police, Perumbavur. The petitioner contends that the load was intended to be transported to the consignee at Pune and the transaction is sought to be supported with reference to Exts.P2 Weighment slip, P2(a) Invoice, Ext.P2(b) Delivery Note, Ext.P2(c) Advance Tax Utilisation Certificate etc.
5. After hearing both the sides, this Court finds that, the vehicle was admittedly loaded with 'plywood' (notified commodity) and that at the time of seizure, there was no supporting document. The case of the petitioner that, weighment was necessary to prepare the necessary Bills cannot be swallowed without a pinch of salt, for the plain reason that the commodity (that is plywood) is a notified commodity in respect of which, advance tax has already been fixed by the competent authorities. That apart, the Invoice prepared by the petitioner after the interception also does not refer to the 'weight' of the commodity, which is stated as sold to the consignee as per invoice No.088 dated 25.01.2014 and the quantity is clearly shown in terms of 'area' (Sq. Meter) and 'thickness'. W.P.C.No.4110 OF20144 This being the position, this Court finds that the issue has to be adjudicated to ascertain the actual facts and figures, with liberty to the petitioner to adduce evidence. But for that purpose, the vehicle as well as the goods need not be detained through out and the custody can be released to the petitioner, subject to satisfaction of 50% of the amount demanded as per Ext.P4 notice and on furnishing Bank guarantee for the balance amount. The adjudication proceedings shall be finalised at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment. The petitioner shall prodcue a copy of this judgment, along with a copy of the writ petition, before the concerned respondent, for further steps. P.R. RAMACHANDRA MENON, JUDGE sp