M/S.Kairali Granites vs The Assistant Commissioner ...
2022 Latest Caselaw 7266 Ker

           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;

WP(C) NO.19001 OF 2017

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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

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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

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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