C M RADHAKRISHNAN Vs. STATIONX MANAGER INDIAN AIRLINES

JUDGEMENT

(1.) PETITIONERS in O. P. Nos. 14503, 15987, 16930 and 17057 of 1992 are the purchasers of call monitors and printers from Pacific Telecommunications and Instruments Limited, Secunderabad, hereinafter referred to as "the company". The said company and its managing director are the petitioners in O. P. No. 17050 of 1992. PETITIONERS in the four writ petitions mentioned above had placed orders with the company for the supply of call monitors and printers, specimen copies of which they have produced along with their writ petitions. They allege that the goods were despatched from Secunderabad to Kochi by air-freight through the Indian Airlines after having been cleared by the excise authorities, for consignment to the respective petitioners. The excise gate passes, specimen copies of which the petitioners have produced show the name of the consignee as the respective petitioners. The invoices issued by the company are in the name of these petitioners and they have been charged Central sales tax in respect of the sales.

(2.) WHEN these consignments reached Kochi, the Indian Airlines which is represented by the first respondent did not deliver the goods to the petitioners though the first respondent had issued cargo arrival notices to the various petitioners. Delivery was refused on the ground that clearance from the second respondent, Intelligence Officer, Sales Tax, Mattancherry, was required before the goods could be delivered. Though the petitioners demurred to this procedure on the ground that the first respondent could not detain the goods and insist on orders from the second respondent, they were definitely informed that such clearance was needed. Copy of the communication which the petitioner in O. P. No. 14503 of 1992 received from the first respondent is exhibit P7 and it informs him that he must obtain written release order from the second respondent to enable the first respondent to deliver the consignment to him. Petitioners apprehended that non-delivery of the goods was because of projected proceedings under section 29a of the Kerala General Sales Tax Act, 1963 ("kgst Act" ). Another purchaser like the petitioners, namely, one B. T. Mathew of Palluruthy had been issued a notice on September 28, 1992, a copy of which is exhibit P8 calling upon him to furnish security for an amount of Rs. 1,853 being twice the amount of the tax alleged to be evaded for getting delivery of the goods. The reason stated for action under section 29a was that the consignee was not a registered dealer under the KGST Act and therefore evasion of tax was suspected. Petitioners in these four writ petitions, namely, O. P. Nos. 14503, 15987, 16930 and 17057 of 1992 filed original petitions in this backdrop of the facts for a declaration that the Intelligence Officer, namely, the second respondent was not entitled to claim tax under the KGST Act for the consignments in question. Since the first respondent, Indian Airlines, had also claimed demurrage caused by the delay in the delivery, petitioners also prayed for a declaration that they were not liable to pay demurrage to the first respondent in respect of the delay in the delivery.

(3.) THE second respondent, Intelligence Officer, has filed a statement in which he justified his action under section 29a (2) of the KGST Act stating that he had strictly acted under the said provision and that he had issued notice to the petitioner in O. P. No. 14503 of 1992 affording him an opportunity of being heard in the matter. A counter-affidavit has been separately filed on behalf of the Intelligence Officer in O. P. No. 17050 of 1992 filed by the company in which it is alleged that there is attempt at evasion of tax by the branch office of the company at Ernakulam, that they have not taken out registration under the KGST Act and that there were local sales by the branch office effected at Ernakulam liable to tax under the KGST Act. According to the counter-affidavit, the detention of the goods in the office of the first respondent was required as otherwise the second respondent may not be able to take action as and when any consignment came.