Kerala High Court
M/S. Dtdc Express Ltd vs State Of Kerala on 29 November, 2018
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA,
1940
WP(C).No. 38491 of 2018
PETITIONER/S:
M/S. DTDC EXPRESS LTD.,
KUMMENCHERY BUILDING, NEAR KIMS HOSPITAL,
PATHADIPPALAM, CHANGAMPUZHA NAGAR P.O., KOCHI-
33, REP. BY ITS REGIONAL MANAGER.
BY ADVS.
SRI.SANDEEP GOPALAKRISHNAN
SRI.ANAND VIMAL
SMT.JINNU SARA GEORGE
SMT.MITHA SUDHINDRAN
SHRI. ZAFAR ANTONIO
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, MINISTRY OF
FINANCE, THIRUVANANTHAPURAM - 695 001.
2 THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES,
COMMERCIAL TAXES OFFICE COMPLEX, THEVARA,
ERNAKULAM - 15.
3 INSPECTING ASSISTANT COMMISSIONER,
COMMERCIAL TAXES OFFICE COMPLEX, THEVARA,
ERNAKULAM-15.
4 INTELLIGENCE OFFICER,
SQUAD NO.VII, COMMERCIAL TAXES, OFFICE
COMPLEX, THEVARA, ERNAKULAM-15.
-2-
W.P.(C). No. 38491 of 2018
OTHER PRESENT:
DR THUSHARA JAMES, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.11.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
JUDGMENT
The petitioner is a courier service. In the last couple of years, the respondent Department wanted to detain the goods in transit; that is the goods couriered through the petitioner. This detention was based on one statutory violation or another by the consignors. So intermittent detention followed.
2. Rather than take possession of the detained goods, the Department seems to have entrusted them to the petitioner for safe custody. That way, the detained goods continued to lie with the petitioner. In the meanwhile, the Department initiated proceedings against the consignors under Section 47 and other related provisions of the KVAT Act.
3. Recently, as seen from the Ext.P4 series, the Department -3- W.P.(C). No. 38491 of 2018 issued to the petitioner notices under Section 67(1) requiring it to produce the goods under detention. But by then, because of the fire in the petitioner's godown, they were burnt along with other material. Treating it as force majeure (an act of God) the petitioner expressed its inability to comply with the Ext.P4 notices. Then the respondents issued the Ext.P5 proceedings penalising the petitioner. Later, for realising those penalties, the Department invoked the revenue recovery proceedings. At that juncture, the petitioner has filed this writ petition.
3. Indeed, the petitioner's counsel has elaborately argued on merits. But in response, the learned Government Pleader has submitted that the petitioner has an efficacious alternative remedy under Section 55 of the KVAT Act, against the Ext.P5 series of penalty orders.
4. I see no valid reason why this Court should entertain this writ petition disregarding the petitioner's alternative remedy, which also seems to be efficacious.
5. Under these circumstances, without adverting to the -4- W.P.(C). No. 38491 of 2018 merits, I dispose of the writ petition, leaving it open for the petitioner to approach the appellate authority. At any rate, as the petitioner has bona fide been prosecuting this case, it meets the ends of justice if the respondent authorities defer coercive steps for a month. It is only to enable the petitioner to take recourse to the statutory remedies available to it.
In the same breath, I may also observe that if the petitioner approaches the appellate authority within two weeks from today, the appellate authority will condone the delay that may have occured.
Sd/-
DAMA SESHADRI NAIDU JUDGE das -5- W.P.(C). No. 38491 of 2018 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF NOTICE O.R. NO.VII/150/15-16 IN FORM 17A DATED 08/06/2015.
EXHIBIT P1 A TRUE COPY OF NOTICE O.R. NO.VII/150/15-16 IN FORM 17A DATED 08/06/2015.
EXHIBIT P1 B TRUE COPY OF NOTICE O.R. NO.VII/556/15-16 IN FORM 17A DATED 14/10/2015.
EXHIBIT P1 C TRUE COPY OF NOTICE O.R. NO.III/739/15-16 IN FORM 17A DATED 15/10/2015.
EXHIBIT P1 D TRUE COPY OF NOTICE O.R. NO.VII/632/15-16 IN FORM 17A DATED 07/11/2015.
EXHIBIT P1 E TRUE COPY OF NOTICE O.R. NO.VII/871/15-16 IN FORM 17A DATED 25/01/2016.
EXHIBIT P1 F TRUE COPY OF NOTICE O.R. NO.VII/872/15-16 IN FORM 17A DATED 25/01/2016.
EXHIBIT P1 G TRUE COPY OF NOTICE O.R. NO.VII/1035/15-16 IN FORM 17A DATED 28/03/2016.
EXHIBIT P1 H TRUE COPY OF NOTICE O.R. NO.VII/330/16-17 IN FORM 17A DATED 06/06/2016.
EXHIBIT P1 I TRUE COPY OF NOTICE O.R. NO.VII/543/16-17 IN FORM 17A DATED 12/08/2016.-6- W.P.(C). No. 38491 of 2018
EXHIBIT P1 J TRUE COPY OF NOTICE O.R. NO.VII/150/15-16 IN FORM 17A DATED 27/10/2016.
EXHIBIT P2 TRUE COPY OF THE FIR NO.0055/2017 DATED 10/01/2017 FILED AT PALARIVATTOM POLICE STATION.
EXHIBIT P3 TRUE COPY OF THE FIRE REPORT NO.018/2017 DATED 10/01/2017 BY THE FIRE DEPARTMENT.
EXHIBIT P4 TRUE COPY OF NOTICE O.R. NO.VII/1051/16-17 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 A TRUE COPY OF NOTICE O.R. NO.VII/1052/16-17 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 B TRUE COPY OF NOTICE O.R. NO.VII/150/15-16 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 C TRUE COPY OF NOTICE O.R. NO.VII/151/15-16 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 D TRUE COPY OF NOTICE O.R. NO.VII/556/15-16 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 E TRUE COPY OF NOTICE O.R. NO.VII/556/15-16 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.-7- W.P.(C). No. 38491 of 2018
EXHIBIT P4 F TRUE COPY OF NOTICE O.R. NO.VII/632/15-16 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 G TRUE COPY OF NOTICE O.R. NO.VII/871/15-16 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 H TRUE COPY OF NOTICE O.R. NO.VII/872/15-16 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 I TRUE COPY OF NOTICE O.R. NO.VII/1035/15-16 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 J TRUE COPY OF NOTICE O.R. NO.VII/330/16-17 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 K TRUE COPY OF NOTICE O.R. NO.VII/543/16-17 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P4 L TRUE COPY OF NOTICE O.R. NO.VII/791/16-17 U/S. 67(1) OF THE KVAT ACT DATED 13/12/2017 ISSUED BY 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF NOTICE O.R. NO.VII/1051/16-17 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.-8- W.P.(C). No. 38491 of 2018
EXHIBIT P5 A TRUE COPY OF NOTICE O.R. NO.VII/1052/16-17 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 B TRUE COPY OF NOTICE O.R. NO.VII/150/15-16 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 C TRUE COPY OF NOTICE O.R. NO.VII/151/15-16 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 D TRUE COPY OF NOTICE O.R. NO.VII/556/15-16 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 E TRUE COPY OF NOTICE O.R. NO.VII/566/15-16 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 F TRUE COPY OF NOTICE O.R. NO.VII/632/15-16 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 G TRUE COPY OF NOTICE O.R. NO.VII/871/15-16 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 H TRUE COPY OF NOTICE O.R. NO.VII/872/16-17 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.-9- W.P.(C). No. 38491 of 2018
EXHIBIT P5 I TRUE COPY OF NOTICE O.R. NO.VII/1035/15-16 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 J TRUE COPY OF NOTICE O.R. NO.VII/330/16-17 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 K TRUE COPY OF NOTICE O.R. NO.VII/543/16-17 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P5 L TRUE COPY OF NOTICE O.R. NO.VII/791/16-17 U/S. 67(1)(I) OF THE KVAT ACT 2003 DATED 05/01/2018 BY 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATIONS BY THE PETITIONER TO 3RD RESPONDENT DATED 08/01/2018.
EXHIBIT P6 A TRUE COPY OF THE REPRESENTATIONS BY THE PETITIONER TO 3RD RESPONDENT DATED 23/04/2018.
EXHIBIT P7 TRUE COPY OF THE DEMAND NOTICE U/S. 7 OF THE KERALA REVENUE RECOVERY ACT 1968 ISSUED BY 3RD RESPONDENT DATED 04/05/2018.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATIONS BY THE PETITIONER TO 3RD RESPONDENT DATED 05/06/2018.
EXHIBIT P8 A TRUE COPY OF THE REPRESENTATIONS BY THE PETITIONER TO 2ND RESPONDENT DATED 05/07/2018.