Kerala High Court
Smt.Elsamma Sebastian vs The Intelligence Inspector on 1 October, 2009
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27302 of 2009(G)
1. SMT.ELSAMMA SEBASTIAN, W/O.
... Petitioner
Vs
1. THE INTELLIGENCE INSPECTOR,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.E.P.GOVINDAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :01/10/2009
O R D E R
C.K. ABDUL REHIM, J.
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W.P.(C) NO:27302 OF 2009
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Dated this the 1st Day of October, 2009.
JUDGMENT
Challenge in this Writ petition is against detention of the transport effected pursuing to the issuance of Ext.P1 notice by the first respondent. According to the petitioner, she had purchased cast iron gate from M/s.Beena Steel Corporation Kayamkulam as per Ext.P2 bill dated 25.9.09. The purchase was made for own use of the petitioner and on her request the seller had despatched the goods to the petitioner's house at Changanacherry in a vehicle bearing registration no:KL: 4 L 3499. But the transport was intercepted by the first respondent and Ext.P1 invoice was issued demanding payment of security deposit, suspecting the evasion of payment of tax. On a perusal of Ext.P1, it is revealed that the inspection was on 3:30 hrs on 25.9.09. In Ext.P1 notice, name of the consignor is one A.P. W.P.(C) NO: 27302 OF 2009 :2:
Metals, Kaloor, Kochi and name of the consignee is mentioned as Sri. Roy Mathew of Punaloor. It is the admitted case of the petitioner that the transport was not accompanied by Ext.P2 bill or any other documents evidencing ownership of the goods by the petitioner or the purchase alleged to have been made by her from M/s. Beena Steel Corporation. The contention of the petitioner is that it was only due to a bona fide omission on the part of the seller that the bill was not handed over to the driver of the lorry. The reason for detention mentioned in Ext.P1 is as follows:
"Due to some information from reliable sources and suspecting the genuineness of the documents produced (8A) and considering the quality loaded on the vehicle, the genuineness, and bona fide of the consignment is suspected and security demanded "
However, the contention of the petitioner is that in spite of her willingness to pay the security deposit demanded under Ext.P1, the first respondent was not prepared to release the goods W.P.(C) NO: 27302 OF 2009 :3:
detained.
2. In a statement filed on behalf of the first respondent, it is mentioned that on receipt of information from sources at Mavelikkara, the first respondent had inspected the vehicle in question at 3.30 hrs. on 25.9.09 at a place called Nooranadu with the help of police party. It is further stated that on stoppage of the vehicle a gang of people headed by Sri.Stanley, who is the owner of M/s. Kunnumpuram Metals, Mavelikkara had interfered and abused the departmental officials. Subsequently, a bill was produced on behalf of said Sri. Stanley which revealed the sale of goods by M/s. A.P.Metals, Kaloor to Sri. Roy Mathew, Punalur.
But on verification the bill was found to be not genuine and not matching with the quantity of the goods. Hence notice as per Ext.P1 was issued. It is further stated that on issuance of the notice, the above said Stanley grabbed the invoice and destroyed the same. It is also submitted that with regard to the above said instance, a complaint was registered before the police authorities.
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It is also mentioned that Ext.P1 notice was issued in the name of one Smt. Prasanna Kumari, whose address was obtained as written on the body of the transporting vehicle. The statement further reveals that on realising the rate of tax applied for computing the amount of security deposit was incorrect and revision notice demanding security deposit at the rate of 25% (double the amount of tax at the rate of 12.5%) is issued and since nobody was available to receive the notice it was affixed on the vehicle and detained at the Nooranadu Police station. The learned Government pleader submits that Ext.P2 is suspected to be a concocted document fabricated after detention of the vehicle and according to him, genuineness of the claim of the petitioner with respect to the goods itself is doubtful. It is also submitted that proceedings under Section 69(I) of the K.V.A.T. Act is also initiated against the owner of the vehicle. It is submitted that as per the revised notice issued under Section 47(2), the amount of security deposit demanded is Rs.65,628/-
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3. Having considered the rival contentions and facts of the case, I am of the opinion that in order to bring out the true and reals facts pertaining to the transport, an elaborate adjudication as contemplated under Section 47 is necessary. As it stands now, the petitioner claims to be the owner of the goods. No other person has approached the authorities claiming the ownership of the goods. The person in control of the vehicle in which the transport was effected has also not revealed as to who is the owner of the goods. Under these circumstances, if the petitioner is ready and willing to make further security deposit as per the bills, I find no reason as to why the goods should not be released to her pending finalisation of the adjudication proceedings.
4. It is made clear that I am not entering into the merrits of the disputed contention and that I am not arriving at any finding as to whether there was any attempted evasion of payment of tax. At the same time, considering the proviso to Section 47(I), I am of the opinion that continuing detention of the goods is totally W.P.(C) NO: 27302 OF 2009 :6:
unwarranted.
5. Under the above circumstances, the Writ Petition is disposed of directing the first respondent to release the goods detained under Ext.P1 notice, on the petitioner furnishing Bank Guarantee for double the amount of tax due on the estimated value of Rs.2,50,000/- calculated at the rate of 12.5%.
6. The competent authority under Section 47 is directed to expedite the adjudication proceedings and to complete the same as early as possible, after affording an opportunity of hearing to the petitioner at any rate, within a period of two months from the date of this judgment.
C. K. ABDUL REHIM, (JUDGE) dl/