IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 19001 OF 2017
PETITIONER:
M/S.KAIRALI GRANITES
N.H.BYE PASS, VYTILLA, KOCHI, REPRESENTED BY ITS
PROPRIETOR, MR.C.R.NARAYANAN EMBRAN
BY ADVS.
SRI.K.SRIKUMAR (SR.)
SRI.P.R.AJITHKUMAR
SRI.K.MANOJ CHANDRAN
RESPONDENTS:
1 THE ASSISTANT COMMISSIONER [ASSMT]
SPECIAL CIRCLE-III, DEPARTMENT OF COMMERCIAL
TAXES,ERNAKULAM PIN-682015
2 THE COMMERCIAL TAX OFFICER
COMMERCIAL TAX CHECK POST,WALAYAR, PALAKKAD PIN-
678001
3 THE ASSISTANT COMMISSIONER,
DEPARTMENT OF COMMERCIAL TAXES, CTPT WALAYAR,
PALAKKAD PIN-678001
4 THE COMMISSIONER OF COMMERCIAL TAXES,
COMMISSIONERATE OF COMMERCIAL TAXES,PUBLIC UTILITY
BUILDING,OPP.MUSEUM, THIRUVANANTHAPURAMPIN-695001
5 THE STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY,GOVT. OF KERALA,
TRIVANDRUM PIN-695001
WP(C) NO.19001 OF 2017
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OTHER PRESENT:
SMT. RESMITHA R. CHANDRAN - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO.19001 OF 2017
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JUDGMENT
The petitioner is a registered dealer under the Kerala Value Added Tax Act, 2003 and Central Sales Tax Act dealing in marble, granite slabs and tiles from outside the State, especially, from State of Rajasthan and State of Karnataka. The petitioner in this writ petition has challenged Circular No.18 of 2012 issued on the fixation of uniform allowance for marbles and granite slabs by the Commissioner of Commercial Taxes, produced as per Ext.P3 and notice of detention under Section 47(2) of the Kerala Value Added Tax Act, 2003 (for short 'the KVAT Act, 2003') produced as per Ext.P6. The prayers in the writ petition are as follows:-
"I. To call for the records leading to Ext.P3 Circular, verify and quash the same by issuing a writ of certiorari or any other writ, order or direction;
II. To direct the 3rd respondent to issue specific, scientific practical guidelines in accordance with the trade practice to the authorities concerned at the check-post for determining the correct quantity of goods after granting specific allowances for defects in order to check under valuation and proper payment of tax;
III. To issue direction to follow the guidelines issued by the Central Excise Department in the matter of measurement of marble and granite slabs, in the absence of specific norms given in the State Act;
IV. To call for the records leading to Ext.P6 notice, verify and quash the same by issuing a writ of certiorari or any other writ, order or direction;
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V. To direct the 2nd respondent to release the consignment detained without insisting for furnishing any security demanded in Ext.P6 notice;"
2. Heard the learned counsel for the petitioner and the learned Government Pleader.
3. Today, when the case came up for consideration, the learned counsel for the petitioner as well as the learned Government Pleader has handed over the judgment of this Court in M/s.Kairali Granites v. State of Kerala and others [2017(4) KHC 928]. On a perusal of the said judgment, it is seen that the aforesaid Circular No.18/2012 was set aside finding that if the Circular is implemented, it would result in arbitrariness in fixing the deduction claimed by the assessee or trader. Hence, the challenge against Ext.P3 Circular stands settled in favour of the petitioner.
4. As regards Ext.P6 notice of detention, the goods detained by the Commercial Tax Inspector were released on the basis of an interim order dated 08.06.2017 passed by this court directing the petitioner to furnish a simple bond without sureties for the security deposit demanded in Ext.P6 notice. The learned counsel for the petitioner submits that Ext.P6 notice has not so far been finalised WP(C) NO.19001 OF 2017 ..5..
by the third respondent under Section 47(6) of the KVAT Act, 2003. Hence, I feel that the above writ petition can be disposed of as follows:-
The third respondent/competent authority is directed to finalise Ext.P6 proceedings under Section 47(6) of the KVAT Act, 2003, if not finalised, within a period of three months from the date of receipt of a copy of this judgment, after affording an opportunity of hearing to the petitioner.
Sd/-
SHOBA ANNAMMA EAPEN, JUDGE MBS/ WP(C) NO.19001 OF 2017 ..6..
APPENDIX OF WP(C) 19001/2017 PETITIONER'S EXHIBITS:-
EXHIBIT P1: TRUE COPY OF THE RELEVANT EXTRACT OF TARIFF PRESCRIBED FOR THE PURPOSE OF CENTRAL EXCISE DUTY.
EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 25.11.2011 IN WPC NO.31544/2011 EXHIBIT P3: TRUE COPY OF THE CIRCULAR NO.18/2012 DATED 23.06.2012 EXHIBIT P4: TRUE COPY OF THE INVOICE NO.PDS/16 DATED 31.05.2017 EXHIBIT P5: TRUE COPY OF THE ADVANCE TAX UTILIZATION BILL 02.06.2017 EXHIBIT P6: TRUE COPY O FTHE NOTICE DATED 02.06.2017