Kerala High Court
M/S.Schiller Healthcare India Private ... vs Intelligence Inspector on 2 April, 2012
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934
WP(C).No. 16028 of 2012 (C)
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PETITIONER(S):
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M/S.SCHILLER HEALTHCARE INDIA PRIVATE LIMITED,
PLOT NO.84 & 85, 2ND CROSS, REDDIYARPALAYAM, AJIZ NAGAR,
PONDICHERRY -605 005. REPRESENTED BY ITS BRANCH MANAGER,
SRI.VENKATESAN S.V.
BY ADV. SRI.TOMSON T.EMMANUEL
RESPONDENT(S):
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1. INTELLIGENCE INSPECTOR,
COMMERCIAL TAXES, SQUAD NO.1,
THIRUVANANTHAPURAM -PIN-695 033.
2. BRANCH MANAGER,
OVERNIGHT PARCEL, NO.56, MARAIMALAI ADIGAL
SALAI ,OPP.SWEDESHI COTTON MILL, PONDICHERRY- 605 001
3. COMMISSIONER OF COMMERCIAL TAXES,
PUBLIC OFFICE BUILDING, NEAR MUSEUM,
THIRUVANANTHAPURAM -PIN-695 033.
R1 & R3 BY SR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13-07-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C)NO.16028/2012
APPENDIX
PETITIONER(S) EXHIBITS :
EXT.P1 COPY OF CERTIFICATE OF REGISTRATION IN ISSUED TO THE
PETITIONER UNDER THE PONDICHERRY VALUE ADDED TAX ACT AND
CENTRAL SALES TAX ACT.
EXT.P2 COPY OF PURCHASE ORDER NO MCH/P/025/2012 DATED 02-04-2012
ISSUED BY DR.SOMERVELL MEMORIAL C S I MEDICAL COLLEGE,
KARAKONAM, THIRUVANANTHAPURAM TO THE PETITIONER.
EXT.P2(A) COPY OF PURCHASE ORDER NO MCH/P/028/2012 DATED 05-04-2012
ISSUED BY DR.SOMERVELL MEMORIAL C S I MEDICAL COLLEGE,
KARAKONAM, THIRUVANANTHAPURAM TO THE PETITIONER.
EXT.P3 COPY OF INVOICE NO. PON/0181/12-13 DATED 20-06-2012 VALUED TO
RS.14,50,000/- RAISED BY THE PETITIONER AGAINST EXT.P2 PURCHASE
ORDER AFTER COLLECTING FULL RATE OF CENTRAL SALES TAX.
EXT.P3(A) COPY OF INVOICE NO. PON/0182/12-13 DATED 20-06-2012 VALUED TO
RS.4,89,600/-RAISED BY THE PETITIONER AGAINST EXT.P2(A)
PURCHASE ORDER, AFTER COLLECTING FULL RATE OF CENTRAL
SALES TAX.
EXT.P4 COPY OF FORM NO.16 CERTIFICATE OF OWNERSHIP PROVIDED BY THE
CONSIGNEE AGAINST EXT P3 INVOICE.
EXT.P4(A) COPY OF FORM NO. 16 CERTIFICATE OF OWNERSHIP PROVIDED BY THE
CONSIGNEE AGAINST EXT P3(A) INVOICE.
EXT.P5 COPY OF CONSIGNMENT NOTE ISSUED BY THE 2ND RESPONDENT TO
PETITIONER FOR TRANSPORTING GOODS PURSUANT TO EXT.P3
EXT.P5(A) COPY OF CONSIGNMENT NOTE ISSUED BY THE 2ND RESPONDENT TO
THE PETITIONER FOR TRANSPORTING GOODS PURSUANT TO EXT P3(a)
EXT.P6 COPY OF RECEIPT DATED 23-06-2012 ISSUED BY 1ST RESPONDENT IN
DETAINING GOODS COVERED WITH EXT P5 AND P5(A) WITHOUT
STATING ANY REASON.
EXT.P6(A) COPY OF NOTICE NO. 310/12-13 DATED 25-06-2012 ISSUED U/S. 47(2) OF
THE KVAT ACT, BY THE 1ST RESPONDENT THROUGH THE
TRANSPORTING AGENCY, DEMANDING SECURITY DEPOSIT.
EXT.P7 COPY OF REPLY DATED 04-07-2012 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
EXT.P8 COPY OF LETTER DATED 04-07-2012 SENT TO 2ND RESPONDENT BY THE
PETITIONER.
sts 2/-
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WP(C)NO.16028/2012
EXT.P9 COPY OF LETTER DATED 06-07-2012 ISSUED BY 1ST RESPONDENT TO THE
PETITIONER IN REJECTING EXT.P7.
EXT.P10 COPY OF JUDGMENT REPORTED IN 8 KTR 244, HELD THAT WHEN GOODS
ARE TRANSPORTED INTO THE STATE FROM OUTSIDE THE STATE, NOT
TO DETAIN ANY GOODS FOR WANT OF ANY DOCUMENT UNDER THE
CONSIGNEE STATE LAW.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.A.TO.JUDGE
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P.R.RAMACHANDRA MENON, J.
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W.P.(c) No. 16028 OF 2012
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Dated this the 13th day of July , 2012
JUDGMENT
The petitioner, who admittedly is not a registered dealer under the KVAT Act, had supplied certain goods to a Medical College at Karakkoram in Thiruvananthapuram, from the place of despatch at Pondicherry. The above goods were entrusted with the transporter and it was accompanied by Ext.P3 series invoices and also by Ext.P4 series certificates of ownership in Form No.16. In the course of transit, the goods happened to be intercepted by the first respondent on 23/06/2012 issuing Ext.P6 addressed to the Manager of the parcel services. This was followed by Ext.P6(a) notice dated 25/06/2012 under Section 47 (2) of the KVAT Act, doubting evasion of tax and demanding security to the tune of Rs. 2,13,360/-, which made the petitioner to approach this Court, as the explanation offered from the part of the petitioner, vide Ext.P7, did not turn to be fruitful.
2. Learned counsel for the petitioner submits that, the petitioner is a genuine dealer, who is having all the requisite licences as WPC.No.16028/2012 2 well as registration under the relevant provisions of the statute applicable to the consignor State. It is stated that the full rate of CST was also collected and as such, there is absolutely no scope for interference or detention of the goods.
Learned Government Pleader submits with reference to the materials on record, particularly, the reply given by the first respondent vide Ext.P9 that, the factual position that the goods were transported 'also through rail stands admitted. This being the position, it was very much obligatory on the part of the parties concerned to have had all the documents, as contemplated under Section 46(3)(e) i.e. a declaration and Form 8FA as well. The petitioner contends that, it is not possible to have Form 8 FA to be procured from the part of the petitioner/consignor, not being a registered dealer in the state of Kerala. The said proposition is sought to be rebutted by the respondents stating that the statute itself takes care of the situation, by giving option to either of the concerned parties to have submitted Form 8FA, not confining the obligation to the consignor alone. It is also on record that the petitioner themselves, on being given to understand the WPC.No.16028/2012 3 requirement, had initiated proceedings against the 'Carrier', alerting them of the consequences to follow. This, however is a matter, which is to be sorted out between the petitioner and the transporter. The fact remains that there was no 'Form 8FA' as stipulated under Section 46(3)
(e). In the said circumstances, the matter requires to be adjudicated by the concerned authority, in accordance with the relevant provisions of law. However, this Court finds that, for that matter, the goods need not be detained and it shall be released to the petitioner forthwith, on furnishing 'Bank Guarantee' for the security amount shown in Ext.P6
(a). This, however, will be without prejudice to the rights and liberties of the respondents to pursue adjudication proceedings, which shall be finalised in accordance with law, as expeditiously as possible.
P.R.RAMACHANDRA MENON JUDGE sv.
WPC.No.16028/2012 4