Kerala High Court
M/S. Mitsubishi Elevator India Private ... vs Intelligence Inspector on 5 February, 2012
Author: A.M. Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938
WP(C).No. 29068 of 2016 (G)
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PETITIONER :
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M/S. MITSUBISHI ELEVATOR INDIA PRIVATE LTD.,
7/310-D5, 3RD FLOOR, MAVELIPURAM,
OLIMUGAL JUNCTION, SEAPORT AIR PORT ROAD,
KAKKANAD, COCHIN-682 030,
REPRESENTED BY ITS SENIOR MANAGER-OPERATIONS,
SRI.N.MATHIVANAN.
BY ADV. SRI.TOMSON T.EMMANUEL
RESPONDENT(S):
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1. INTELLIGENCE INSPECTOR,
SQUAD NO.VI, COMMERCIAL TAXES,
FACILITATION CENTRE, ELOOR-683 501
2. COMMERCIAL TAX INSPECTOR,
COMMERCIAL TAXES, FACILITATION CENTRE,
ELOOR-683 501.
3. COMMERCIAL TAX OFFICER (WORKS CONTRACT),
COMMERCIAL TAXES, ERNAKULAM, COCHIN-682 018.
4. COMMISSIONER OF COMMERCIAL TAXES,
PUBLIC OFFICE BUILDING, NEAR MUSEUM,
THIRUVANANTHAPURAM-695 033.
BY SR GOVERNMENT PLEADER SRI.C.P.PRADEEP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01-09-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).NO.29068/2016
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE REGISTRATION CERTIFICATE DATED 05/02/2012 ISSUED TO
PETITIONER BY 3RD RESPONDENT
P2 COPY OF THE AGREEMENT DATED 03/07/2015 ENTERED INTO BETWEEN
PETITIONER COMPANY AND ACUSTOMER IN THIRUVANANTHAPURAM FOR
PURCHASE OF ELEVATORS UNDER HIGH SEA SALES AND FOR
INSTALLATION OF THE SAME
P2(A) COPY OF THE AGREEMENT DATED 15/12/2015 ENTERED INTO BETWEEN
PETITIONER COMPANY, IN MODIFYING EXT.P2 ORDER AS AWORKS
CONTRACT FOR SUPPLY OF ENQUIPMENTS AND ITS INSTALLATION
P3 COPY OF THE INVOICE NO.MCLS-6AHQ041-1 DATED 06/08/2016 RAISED ON
PETITIONER BY MC LIFT SOLUTIONS CO. LTD, THAILAND FOR THE IMPORT
OF 3 NOS. OF ELEVATORS HAVING SERIAL NO.IM15055003FTA-AL.
P4 COPY OF THE BILL OF ENTRY NO.6495272 DATED 26/08/2016 ISSUED TO
PETITIONER BY CUSTOMAS AUTHORITIES IN COCHIN SEA PORT IN
COLLECTING CUSTOMAS DUTY FROM PETITIONER.
P5 COPY OF THE FORM NO.8FA ONLINE DECLARATION HAVING ID
NO.320720/8FA/1871/2016 DATED 29/08/2016 GENERATED BY PETITIONER AND
MADE AVAILABLE TO CLEARING AGENT FOR DECLARING BEFORE 2ND
RESPONDENT
P5(A) COPY OF THE FORM NO.8FA ONLINE DECLARATION HAVING ID
NO.320720/8FA/1868/2016 DATED 29/08/2016 GENERATED BY PETITIONER AND
MADE AVAILABLE TO CLEARING AGENT FOR DECLARING BEFORE 2ND
RESPONDENT
P6 COPY OF THE LETTER DATED 29/08/2016 HANDED OVER BY CLEARING
AGENT TO DRIVERS OF TRANSPORT VEHICLE, FOR THE DECLARATION
WHICH NEED TO ACCOMPANY FROM KAKKANAD.
P7 COPY OF THE NOTICE NO.OR 338/2016-17 DATED 29/08/2016, SERVED TO
PETITIONER ON 30/08/2016, IN DEMANDING SECURITY DEPOSIT U/S 47(2) OF
THE KVAT ACT
P8 COPY OF THE REPLY DATED 30/08/2016 SUBMITTED BY PETITIONER BEFORE
1ST RESPONDENT WITHIN THE TIME LIMIT SPECIFIED IN EXT.P7 NOTICE.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.S.TO JUDGE
sts
A.M. SHAFFIQUE, J.
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W.P. (C) No. 29068 of 2016
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Dated this, the 1st day of September, 2016
J U D G M E N T
Petitioner has approached this Court challenging Ext.P7 by which petitioner is called upon to remit an amount of `16,90,700/- as security for releasing three numbers of elevators in two vehicles. In Ext.P7, it is stated that the vehicle with goods were checked at Facilitation Centre, Eloor. On verification of the documents accompanying, it is noticed that the goods under transport are not accompanied by any of the documents prescribed under Section 46 (3) of the KVAT Act, 2003 and that though the consignee has entered into agreement dated 15/12/2015 and getting payments from 8/10/2015, the work has not been declared in any of the returns. No returns had been filed by the awarder M/s.Artech Realtors (P) Ltd. Hence, on the assumption that there is a clear case of attempt to evade tax, the goods have been detained.
2. The main contention urged by the petitioner is that the goods had been brought as per Ext.P3 invoice issued by a foreign company to the petitioner having their office at Seaport Airport W.P(C) No.29068/16 -:2:- Road, Olimugal Junction, Kakkanad. The concerned Bill of Entry is Ext.P4. Form 8FA declaration of goods had been mentioned in the KVATIS which is produced as Exts.P5 and P5(a) which also indicates that the consignee's name and address is at Kakkanad. It is submitted that the vehicle which was being brought to the Branch Office at Kakkanad is being intercepted. The only reason for interception is with reference to Ext.P6 wherein a declaration has been given that the goods are shifted from Ernakulam to worksite at Artech, Trivandrum. The main contention raised by the learned counsel for the petitioner is that this letter is intended to be carried by the driver of the vehicle after necessary documents are drawn at the end of the petitioner after the goods have reached Kakkanad office. In so far as the consignee is having their office at Kakkanad, unless the goods reach Kakkanad, documents cannot be drawn as provided under Section 46(3) of the Act.
3. Learned Government Pleader submits that the goods were taken without any documents and even the petitioner had indicated that it is to a worksite at Artech, Trivandrum. But, having regard to the explanation offered by the petitioner, it is W.P(C) No.29068/16 -:3:- conceivable that the documents have to be prepared at the time when the goods are transported from their Kakkanad Office to the work place at Trivandrum. The fact that no returns were filed etc., are all matters which require adjudication and it shall always be open for the respective officers to take necessary action in that regard. However, having regard to the fact that the goods are covered by valid documents, it will not be appropriate to detain the goods.
Having regard to the facts and circumstances of the case, I dispose of this writ petition as under:
(i) The goods along with the vehicles mentioned in Ext.P7 shall be released to the petitioner on the petitioner furnishing a simple bond without sureties before the 1st respondent.
(ii) The 1st respondent shall complete the adjudication proceedings within a period of two months from the date of receipt of a copy of this judgment.
Sd/-
A.M. SHAFFIQUE, JUDGE Rp1/09/2016 //True Copy// P.S to Judge