NEW AMAL PLY WOOD Vs. THE INTELLIGENCE OFFICER

JUDGEMENT

(1.) The petitioner is a registered dealer under the Kerala Value Added Tax Act, 2003 (hereinafter referred to as ("the KVAT Act") and CST Act, engaged in the manufacture and trade of plywood, flush door, block board etc. A consignment of plywood was despatched by the petitioner to a consignee and, while the vehicle that was transporting the said consignment was en route to the consignee, it was detained by the first respondent who issued a notice under Section 47 (2) of the KVAT Act. It is the case of the petitioner that, although he produced all the required documents before the first respondent, the second respondent, thereafter issued a notice under Sec. 49 of the KVAT Act proposing a confiscation of the vehicle that was used to transport the consignment of plywood. It is the case of the petitioner that when, despite submitting a detailed reply to the notice received by him from the 2nd respondent, the 2nd respondent was not inclined to release the vehicle or the goods, the petitioner approached this Court through Writ Petition 25627/2010 and by Ext.P11 judgment this Court disposed the said Writ Petition directing the 2nd respondent to consider the documents produced by the petitioner in support of his case and pass orders thereon. It is pointed out that the 2nd respondent thereafter passed orders detaining the vehicle and directed the payment of redemption fee and detention amount for the release of the vehicle and the goods. Although the petitioner has complied with the orders passed by the 2nd respondent, the Writ Petition is filed challenging the provisions of Section 49 of the KVAT Act, 2003 as unconstitutional, being beyond the legislative competence of the State Legislature and ultra vires Articles 14, 19 and 21 of the Constitution of India. The petitioner also contends that the provisions are violative of Article 301 of the Constitution of India, to the extent it restricts the free movement of goods in the course of trade and commerce.

(2.) A counter affidavit has been filed on behalf of the respondents wherein the circumstances leading to the detention of the vehicle and the goods has been narrated. As regards the challenge to the validity of the legislation, it is the contention of the State that the impugned provision is one that is intended to check evasion of tax in respect of notified commodities and, in that respect, it is one that would be incidental or ancillary to the power of the State Legislature to enact a law for the levy of tax on sale or purchase of goods. It is also pointed out that Ext. P13 order is appealable under the terms of the Act and, in so far as the petitioner has not availed the alternate remedy under the statute, the Writ Petition is to be dismissed on that ground.

(3.) I have heard Sri.Abraham, the learned counsel for the petitioner as well as learned Government Pleader Smt.Lilly for the respondent. In as much as there is a challenge in the Writ Petition against the Constitutional validity of the provisions of Sec. 49 of the KVAT Act, I also considered it appropriate to appoint Advocate Sri. Harishankar Menon as Amicus Curiae to assist this Court in the matter.