Kerala High Court
Otis Elevator Company (India) Ltd vs The State Of Kerala on 31 October, 2015
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937
WP(C).No. 6316 of 2016 (L)
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PETITIONER(S) :
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OTIS ELEVATOR COMPANY (INDIA) LTD.,
NO.92 KIADB INDUSTRIAL ESTATE, PHASE II
JIGANI INDUSTRIAL AREA, ANEKAL TALUK, BANGALORE- 560 105,
REPRESENTED BY ITS MANAGER-KERALA OPERATIONS
MR.DEEPAK SAKTHAR.
BY SRI.JOSEPH MARKOSE (SENIOR ADVOCATE)
ADVS. SRI.V.ABRAHAM MARKOS
SRI.ABRAHAM JOSEPH MARKOS
SRI.ISAAC THOMAS
SRI.NOBY THOMAS CYRIAC
RESPONDENT(S) :
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1. THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO THE MINISTER OF FINANCE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.
2. COMMERCIAL TAX INSPECTOR,
COMMERCIAL TAX CHECK POST, WALAYAR- 678 624.
3. ASSISTANT COMMISSIONER (ASSMT.),
WORKS CONTRACT, COMMERCIAL TAXES,
THIRUVANANTHAPURAM- 695 003.
4. SANTHULA CHARITABLE TRUST HOSPITAL,
OLIYAPPURAM, KOOTHATTUKULNGARA,
KERALA- 686 662.
R1 TO R3 BY GOVERNMENT PLEADER SMT.LILLY.K.T
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Msd.
WP(C).No. 6316 of 2016 (L)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXHIBIT P1: TRUE COPY OF STATEMENT SHOWING BANK GUARANTEES
FURNISHED BY THE PETITIONER.
EXHIBIT P2: TRUE COPY OF ORDER DATED 31.10.2015 ISSUED BY
THE COMMERCIAL TAX OFFICER (ENQUIRY), TRIVANDRUM.
EXHIBIT P3: TRUE COPY OF ORDER DATED 10.08.2015 OF
THE 4TH RESPONDENT.
EXHIBIT P4: TRUE COPY OF WAY BILL NO.13/OTI 0762/15 DATED 13.02.2016.
EXHIBIT P5: TRUE COPY OF DELIVERY CHALLAN DATED 06.02.2016.
EXHIBIT P6: TRUE COPY OF FORM 16 CERTIFICATE OF OWNERSHIP
DATED 08.02.2016 OF THE 4TH RESPONDENT HOSPITAL.
EXHIBIT P7: TRUE COPY OF E-SUGAM FORM UNDER SECTION 53(2A).
EXHIBIT P8: TRUE COPY OF A CONSIGNMENT DECLARATION IN FORM 8F
DATED 13.02.2016.
EXHIBIT P9: TRUE COPY OF DECLARATION DATED 08.02.2016 FROM
THE CONSIGNEE.
EXHIBIT P10: TRUE COPY OF NOTICE DATED 15.02.2016 ISSUED UNDER
SECTION 47(2) OF THE KVAT ACT BY THE 2ND RESPONDENT.
EXHIBIT P11: TRUE COPY OF ASSESSMENT ORDER DATED 09.12.2010 FOR
KVATASSESSMENT YEAR 2008-2009 ISSUED BY
THE 3RD RESPONDENT.
RESPONDENT(S)' EXHIBITS :
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NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C) No.6316 of 2016
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Dated this the 19th day of February 2016
JUDGMENT
A consignment of Elevator and parts, that was being transported at the instance of the petitioner was detained by the respondents. Ext.P10 is the detention notice. In the writ petition, the petitioner is aggrieved by the insistence of the respondents that the petitioner must pay the security deposit demanded in the detention notice as a condition for release of the goods and vehicle.
2. I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents.
3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I dispose the writ petition with the following directions:
(i) On a perusal of Ext.P10 notice, it is seen that the objection of the respondent is essentially that the petitioner is not a registered dealer under the Kerala Value Added Tax (KVAT) Act. W.P.(c).No.6316 of 2016 : 2 :
The respondents, therefore, suspected a possible evasion of tax. The learned senior counsel would submit that the petitioner is a registered dealer within the State and the petitioner has also been assessed under the KVAT Act, for sales effected within the state. It is the specific contention of the learned senior counsel that, there have been many consignments of the petitioner, which have been detained at various check posts, on the ground that the petitioner is not a registered dealer. Taking note of the said submission of the learned senior counsel for the petitioner and finding that the transportation of the goods was otherwise in accordance with the provisions of the KVAT Act, I direct the 2nd respondent to release the goods and the vehicle covered by Ext.P10 detention notice, to the petitioner, on his executing a simple bond without sureties for the security deposit amount demanded in the Ext.10 notice, before the 2nd respondent. It is also made clear that, the respondents shall take note of the Registration certificate issued to the petitioner and shall not detain the consignments of the petitioner company, on the sole ground that the petitioner is not a registered dealer within the State.
(ii) The 2nd respondent shall thereafter transmit the files to the adjudicating authority who shall adjudicate the matter and pass orders, after W.P.(c).No.6316 of 2016 : 3 : hearing the petitioner, within two months from the date of receipt of a copy of this judgment.
(iii) The petitioner shall produce a copy of this judgment and a copy of the writ petition before the 2nd respondent.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE sm/