Kerala High Court
M/S. Kapico Kerala Resorts (P) Ltd vs State Of Kerala on 30 December, 2011
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
MONDAY, THE 16TH DAY OF JULY 2012/25TH ASHADHA 1934
WP(C).No. 16416 of 2012 (B)
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PETITIONER(S):
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M/S. KAPICO KERALA RESORTS (P) LTD
CHERTHALA, ALAPPUZHA DISTRICT - 688 001
REPRESENTED BY ITS DIRECTOR, RETNA EASWARAN.
BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
SRI.KURYAN THOMAS
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY (TAXES) DEPARTMENT
GOVERNMENT OF KERALA, SECRETARIAT
THIRUVANANTHAPURAM - 695 001.
2. THE COMMERCIAL TAX INSPECTOR
COMMERCIAL TAX CHECK POST, WALAYAR
PALAKKAD DISTRICT - 678 624.
BY GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
W.P.(C) NO.16416/2012
APPENDIX
PETITIONER(S) EXHIBITS
P1:-COPY OF THE PURCHASE ORDER DATED 30/12/2011 ISSUED BY THE PETITIONER TO
VOLTAMP TRANSFORMERS LTD.,BANGALORE.
P2:- COPY OF THE RETAIN INVOICE NO.R1/1213/0454 DATED 28/06/2012 ISSUED BY
VOLTAMP TRANSFORERS LTD.,BANGALORE.
P3:- COPY OF THE RETAIL INVOICE NO. R1/1213/0455 DATED 28/06/2012 ISSUED BY
VOLTAMP TRANSFORMERS LTD.,BANGALORE.
P4:- COPY OF THE EXCISE INVOICE NO. N 00519 DATED 28/06/2012 ISSUED BY VOLTAMP
TRANSFORMERS LTD.,BANGALORE.
P5:-COPY OF THE EXCISE INVOICE NO. N 00520 DATED 28/06/2012 ISSUED BY VOLTAMP
TRANSFORMERS LTD.,BANGALORE.
P6:- COPY OF THE PACKING LIST DATED 28/06/2012 ISSUED BY VOLTAMP
TRANSFORMERS LTD., BANGALORE,(INVOICE NO. 1213/0454).
P6(A):- COPY OF THE PACKING LIST DATED 28/06/2012 ISSUED BY VOLTAMP
TRANSFORMERS LTD., BANGALORE (INVOICE NO. 1213/0455)
P7:- COPY OF THE WARRANTY CERTIFICATE DATED 28/06/2012 ISSUED TO THE
PETITIONER BY VOLTAMP TRANSFORMERS LTD., BANGALORE.
P8:-COPY OF THE NOTICE DATED 10/07/2012 ISSUED TO THE PETITIONER BY THE 2ND
RESPONDNT.
P9:- COPY OF THE CRTIFICATE OF REGISTRATION DATED 27/04/2012 ISSUED BY THE
PETITIONER.
P10:- COPY OF THE LETTER DATED 27/04/2012 SUBMITTED BY THE PETITIONER
BEFORE ITS ASSESSING AUTHORITY,INTIMATING ITS INTENTION TO BRING IN GOODS
FROM OTHER STATES.
P11:- COPY OF THE REPLY DATED 12/07/2012 SENT BY THE PETITIONER TO THE 2ND
RESPONDENT.
P12:- COPY OF THE CONTRACT ENTERED INTO BY THE PETITIONER WITH M/S. VIJAYA
ELE-TECH PVT. LTD., KOCHI DATED 11/07/2011.
RESPONDENTS' EXHIBITS
NIL
//TRUE COPY//
P.S. TO JUDGE
tss
P.R.RAMACHANDRA MENON, J.
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W.P.(c) No. 16416 OF 2012
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Dated this the 16th day of July , 2012
JUDGMENT
Petitioner Company is constructing a 'resort' in Alappuzha District and is a registered dealer both under the KGST Act and CST Act. So as to meet the requirements of the business, the petitioner purchased 'two transformers' from the supplier in Gujarat and the said items were being transported on the strength of Exts.P2 to P5 invoices and also supported by the relevant certificates of ownership. In the course of transit, the vehicle carrying the goods was intercepted by the second respondent on 10/07/2012, issuing Ext.P8 notice under Section 47(2) of the KVAT Act doubting evasion of tax and demanding security deposit to the extent of Rs. 26,69,820/-, which made the petitioner to approach this Court for immediate intervention.
2. The learned counsel for the petitioner submits that, by virtue of the very nature of the Constitution of the Company and also the business sought to be pursued, the petitioner is not dealing with any WPC.No.16416/2012 2 transformers or such other items and that the materials purchased by the petitioner and brought from Gujarat, satisfying the sale consideration and also meeting the requisite taxes, as prescribed, are only for 'own use'. The sole reason stated by the second respondent for detaining the goods is with reference to the possible chance for involvement of a works contract. There is absolutely no merit or basis for nurturing any doubt or apprehension, submits the learned counsel.
3. Heard the learned Government Pleader as well.
4. Going by the nature of contentions and also the materials produced before this Court, the goods were being transported on the basis of the relevant documents, as contemplated under Section 46(3) of the KVAT Act. With regard to the chance for any works contract, it of course is a matter, which could be brought to light in the course of adjudication proceedings. But, for that reason, the goods need not be detained any further and the same shall be released to the petitioner forthwith, on executing a 'simple bond' without sureties. This will be without prejudice to the rights and liberties of the respondents to pursue the adjudication proceedings, which shall be finalised, in WPC.No.16416/2012 3 accordance with law, as expeditiously as possible.
5. Learned counsel for the petitioner submits that the observation made by the second respondent in Ext.P8 notice that there were 'four transformers is not correct and that only 'two transformers' are there, as included in 'four boxes' carried in the concerned lorry, which is a matter to be subjected to 'physical verification' by the authorities concerned. In the said circumstances, the respondents are permitted to conduct a physical verification at the premises of the petitioner, immediately on reaching the destination and the petitioner shall render all co-operation and assistance in this regard. The boxes shall be opened only in the presence of the authorised officer of the Department, which exercise shall be pursued within 'three days' from reaching the destination. It is for the petitioner to serve intimation to the concerned assessing authority for finalising the steps as above, forthwith.
Writ petition is disposed of.
P.R.RAMACHANDRA MENON JUDGE sv.
WPC.No.16416/2012 4 WPC.No.16416/2012 5