The goods (Indian Made Foreign Liquor) transported by the petitioner in the vehicle bearing No. TN 37 BM 6246 came to be intercepted by the first respondent issuing Ext. P10 notice (styled as a notice issued under Section 47 (2) of the KVAT Act), referring the alert message given by the Deputy Commissioner (Commercial Taxes) as to the huge arrears to be cleared by the petitioner, which made the petitioner to approach this Court seeking for immediate interference.
2. Pleadings and proceedings reveal that the goods sought to be transported by the petitioner on an earlier instance came to be detained by issuing Ext. P1 notice under Section 47 (4) of the KVAT Act, stating that the petitioner was defaulter and that there was some message/order given by the Deputy Commissioner as to the liability on the petitioner in satisfying the due amount. This made the petitioner to approach this Court by filing W.P.(C) No. 3775 of 2014.
The detention was on 25.12.2013, but the concerned order sought to be relied on from the part of the respondents was dated 26.12.2013. As such, it was observed that no valid order was in existence on 25.12.2013 to have sustained the detention with reference to Section 47 (4). After hearing both the sides, the writ petition was disposed of, directing the goods to be released on execution of a personal bond which is stated as given effect to, as borne by Ext. P3.
3. The concerned respondent proceeded with further steps to quantify the tax liability and to impose penalty upon the petitioner for non-surrender of transit pass. As per Ext. P4 order dated 26.12.2013, concerned officer turned down the explanation offered from the part of the petitioner and fixed the liability including penalty to the tune of Rs.50,13,345/-.
4. Being aggrieved of the said order, the petitioner approached the appellate authority by way of Ext. P5 appeal and Ext. P6 petition for stay. Because of the coercive proceedings, the petitioner approached this Court by filing W.P.(C) No. 4982 of 2014, which was disposed of as per Ext. P7 verdict, directing the appellate authority to consider and pass appropriate orders in I.A.
for stay. Pursuant to the said verdict, I.A. for stay was considered and the appellate authority passed Ext. P8 order dated 16.10.2014, directing the petitioner to satisfy 30 % of the disputed liability, to avail the benefit of interim stay, which is sought to be challenged by way of present writ petition.
5. In the meanwhile, transportation of goods in the vehicle bearing No. TN 37 BM 6246 came to be intercepted as mentioned in Ext. P10 notice, referring to the 'Alert Message' issued by the Deputy Commissioner because of the huge liability to be cleared by the consignee; however without mentioning the quantum of liability to be cleared by the petitioner.
6. The learned counsel for the petitioner submits that the explanation submitted by the petitioner as to the non-surrendering of transit pass (with regard to sole/basic issue) was sought to be substantiated with reference to the relevant documents issued by the departmental authorities of the concerned States, i.e. State of Kerala and State of Mahe. Ext. P11 is the certificate issued by the Excise Inspector, Excise Check Post, New Mahe, which clearly certifies that the disputed transaction/goods (550 cases of IMFL carried in the vehicle bearing No. MH 18 AA 1927) were taken outside the State and delivered to the consignee i.e. M/s Balaji Enterprises. A similar proceedings has been issued by the Excise Inspector, Mahe as borne by Ext. P12 Excise Verification Certificate. A further certificate dated 25.09.2013 has been issued by the Deputy Commissioner (Excise), Mahe, Government of Puducherry, to the effect that disputed goods have already reached the godown of M/s Balaji Enterprises, Pandakkal, Mahe. The learned counsel for the petitioner points out that the doubt with regard to the doubted transaction (non surrendering of transit pass, leading to rebuttable presumption of sale deemed as effected in Kerala) has been cleared by the petitioner, by producing necessary documents before the concerned respondent. This aspect has not been considered by the appellate authority while passing Ext. P8 order imposing the condition upon the petitioner.
7. Heard the learned Government Pleader as well.
8. After hearing both the sides, this Court finds that the petitioner, prima facie, has established the case, which however is a matter to be looked into by the appellate authority. The said aspect has been omitted to be considered while passing Ext. P8 interim order. Eventhough contentions of the petitioner have been referred to, there is absolutely no discussion, so as to sustain the condition imposed upon the petitioner. The law is well settled by authoritative pronouncement by the Apex Court and this Court that even in the case of interim order, specific reason has to be given so as to sustain the same. It is worthwhile to quote the decision rendered by the Apex Court in Ravi Gupta Vs. Commissioner of Sales Tax [(2009) 22 VST 529] and this Court reported in 2014 (2) KLT 715 [Archana Agencies Vs. Commercial Tax Officer].
9. In the said circumstances, this Court finds it fit and proper to cause the appeal to be considered by the third respondent at the earliest. Accordingly, the third respondent is directed to pass final orders on Ext.P5 appeal, in accordance with law, after giving an opportunity of hearing to the petitioner, which shall be done, at the earliest, at any rate within 'three months' from the date of receipt of a copy of this judgment. The condition imposed by the appellate authority as per Ext. P8 will stand waived and the petitioner shall continue to avail the benefit of interim stay during pendency of appeal. Since it is stated that the only liability is under Ext. P4, which forms the subject matter of Ext. P5 appeal, the vehicle and goods detained by the concerned authority, as per Ext. P10, shall be released to the petitioner forthwith, on execution of a 'Simple Bond' without sureties.
Petitioner shall produce a copy of this judgment along with a copy of the writ petition before the concerned respondent for further steps.
Sd/-
P. R. RAMACHANDRA MENON, (JUDGE) kmd