Kerala High Court
National Agencies vs Commercial Tax Inspector on 29 December, 2016
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 4TH DAY OF JANUARY 2017/14TH POUSHA, 1938
WP(C).No. 154 of 2017 (T)
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PETITIONER:
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NATIONAL AGENCIES,
CENTURY BUILDINGS, BASIN ROAD,
ERNAKULAM, KOCHI - 682 035,
REPRESENTED BY ITS MANAGING PARTNER,
V.KUNHAHMED.
BY ADVS.SRI.S.ANIL KUMAR (TRIVANDRUM)
SRI.K.S.HARIHARAN NAIR
RESPONDENT(S):
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1. COMMERCIAL TAX INSPECTOR,
COMMERCIAL TAX CHECK POST,
WALAYAR, PALAKKAD DISTRICT - 678 624.
2. COMMERCIAL TAX OFFICER,
2ND CIRCLE, ERNAKULAM - 682 018.
BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 04-01-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
mbr/
WP(C).No. 154 of 2017 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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P1 : COPY OF CERTIFICATE OF REGISTRATION.
P2 : COPY OF MONTHLY RETURN FOR NOVEMBER, 2016.
P2(A) : COPY EACH OF SOME OF THE INVOICES ISSUED DURING
NOVEMBER, 2016.
P3 : COPY OF INVOICE DATED 29.12.2016 ISSUED BY
M/S. RISHABA POLY PACKS, COIMBATORE.
P4 : COPY OF DECLARATION DATED 29.12.2016 IN FORM 8F.
P5 : COPY OF NOTICE DATED 30.12.2016 ISSUED BY THE
RESPONDENT.
P6 : COPY OF REPLY DATED 02.1.2017 FILED BY THE PETITIONER.
RESPONDENT(S)' EXHIBITS: NIL
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//TRUE COPY//
P.S. TO JUDGE
mbr/
K. VINOD CHANDRAN, J.
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W.P.(C) No. 154 of 2017 (T)
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Dated: 4th January, 2017
J U D G M E N T
The petitioner's goods were detained at the check post as is seen from Ext.P5 notice. The petitioner is a dealer inter alia in plastic carry bags. The petitioner had purchased the goods from outside the State and had declared the same to be 'packing material' in the declaration uploaded in Form 8F under the Kerala Value Added Tax Act, 2003 ('KVAT Act' for short). The detention was on account of the mis-classification of the goods as 'packing material'.
2. The contention raised by the learned Government Pleader in support of Ext.P5 is that the petitioner, obviously, is not using the material as packing material and in such circumstance there could W.P.(C) No.154/2017 -2- be no claim raised of the concessional rate of 5%, applicable only to packing materials. On facts, it is submitted that the petitioner is engaged in the sale of such material, which would attract tax at the higher rate of 20%. It is also submitted that, in such circumstance, there is discernible a clear attempt to evade tax.
3. The learned Counsel for the petitioner, however, submits that the petitioner had been paying tax at the rate of 20% as can be seen from the returns filed earlier. The alleged mis-classification occurred only since the State, from which the materials were purchased, does not have a Schedule as available in Section 6(1)(a) of the KVAT Act. In the Schedule, inter alia carry bags made of plastic, under item no.3, is liable to be taxed at the rate of 20%. It is submitted that there was no attempt to evade tax and the mis-classification, if at all, is a bona fide mistake. W.P.(C) No.154/2017 -3-
4. These are all issues which have to be considered in a properly initiated adjudication proceedings. At this point, the petitioner is concerned only with the release of his goods. Considering the fact that the petitioner is a registered dealer and that the petitioner has a prima facie case to refute the offence alleged, it is only proper that the petitioner be released with the goods on execution of a simple bond without solvent sureties. The same shall be done expeditiously on production of the certified copy of this judgment. The adjudication proceedings shall be proceeded with untramelled by any observation made herein above or the fact that this Court had directed release of the goods unconditionally.
The writ petition would stand disposed of.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 4/1/17