Allowed

M/S.Ogm Institute of Technical Society v. Intelligence Inspector, Kollam

Kerala HC20 Feb 2013WP(C)/4292/2013

Case brief

AI extract

What is this about?

The High Court released detained imported machinery used by an educational society, directing a bond without sureties, noting prima facie evidence supported the claim of bona fide importation despite pending statutory adjudication.

What did the court decide?

Directed that the detained equipment shall be released to the petitioner upon execution of a bond without sureties.

M/S.Ogm Institute of Technical Society Vs Intelligence Inspector, Kollam — Kerala HC (2013) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934

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WP(C).No. 4292 of 2013 (J)

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PETITIONER:

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M/S.O.G.M INSTITUTE OF TECHNICAL SOCIETY, 3RD FLOOR, RAVI'S ARCADE, NEAR IRON BRIDGE, KOLLAM - 691 013,REPRESENTED BY ITS JOINT SECRETARY S. MOHANKUMAR.

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BY ADVS.SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON, SRI.MAHESH V.MENON.

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RESPONDENTS:

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1. INTELLIGENCE INSPECTOR, COMMERCIAL TAXES, SQUAD NO. 1, KOLLAM - 691 021.

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2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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BY SR. GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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W.P.(C). NO.4292/2013-J:

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT-P1TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE DISTRICT REGISTRAR, KOLLAM

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EXHIBIT-P2TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF THE PETITIONER COMPANY.

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EXHIBIT-P3TRUE COPY OF THE COMMUNICATION RECEIVED FROM THE INCOME TAX DEPARTMENT.

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EXHIBIT-P4TRUE COPY OF THE INVOICE OF M/S. AL MULLA GENERAL TRADING AND TANSPORTATION W.L.L. BEHRAIN DTD. 09/12/2012.

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EXHIBIT-P5TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KOLLAM EAST VILLAGE, KOLLAM DTD. 06/02/2013.

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EXHIBIT-P6TRUE COPY OF THE BILL OF ENTRY OF COCHIN CUSTOMS, COCHIN -3, DTD. 05/02/2013.

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EXHIBIT-P7TRUE COPY OF THE CERTIFICATE OF OWNERSHIP OF THE PETITIONER DTD.06/02/2013.

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EXHIBIT-P8TRUE COPY OF THE SELF DECLARATION OF THE PETITIONER DTD. 06/02/2013.

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EXHIBIT-P9TRUE COPY OF THE NOTICE IN FORM NO. 17 A ISSUED BY THE IST RESPONDENT DTD. 09/02/2013.

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EXHIBIT-P10- TRUE COPY OF THE JUDGMENT IN W.P(C) 11445/2012 OF THIS HON'BLE COURT DTD. 18/05/2012.

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EXHIBIT-P11- PHOTOGRAPH OF THE PETITIONER'S INSTITUTION AT BEACH ROAD, KOLLAM.

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EXHIBIT-P12- PHOTOGRAPHS OF THE MACHINERY LYING IN THE GROUND ATTACHED TO UPASANA COLLEGE OF NURSING.

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EXHIBIT-P13- OWNERSHIP CERTIFICATE ISSUED BY THE SECRETARY, THRIKKOVILVATTOM, GRAMA PANCHAYATH REGARDING OWNERSHIP OF UPASANA COLLEGE OF NURSING DTD. 02/04/2007.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.A. TO JUDGE

Prv.

ANTONY DOMINIC, J

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........................................ W.P.(C).4292/2013

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.............................................. Dated this the 20^th day of February, 2013

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JUDGMENT

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Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.

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Petitioner is a Society, the certificate of registration of which is Ext.P1. Ext.P2 is the memorandum of association which shows that establishment of an educational institution is one of the objects of the petitioner Society. According to the petitioner, in pursuance thereto, they wanted to establish an institution for training professionals for Oil, Gas, Mining and other allied industries. For that purpose, they purchased used machineries from a supplier abroad, the invoice of which is Ext.P4. Ext.P6 is the Bill of Entry and Ext.P7 is the certificate of ownership. Ext.P8 is also a self declaration. All these are produced to show that the machineries imported are used machineries and that the purpose of such importation is for setting up an institute by the petitioner themselves.

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W.P.(C).4292/13

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It is the case of the petitioner that the machineries were imported through Kochin Port and were despatched to their destination in five trucks. Four trucks have reached the destination and the machineries transported were unloaded. However, one truck was detained and Ext.P9 is the notice of detention issued under Section 47(2) of the KVAT Act. The irregularities which led to the detention are also mentioned in Ext.P9. Petitioner has various explanations to the irregularities. However, that is a matter for adjudication in terms of the provisions of the Act and therefore, it may not be necessary for this Court to pronounce upon the correctness or otherwise of those irregularities. However, taking note of the contentions of the petitioner that the machineries were imported for their own use and not for sale and that therefore, much of the irregularities that are noticed in Ext.P9 are without substance.

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A statement was filed on behalf of the 1^st respondent which even create a doubt as to the existence of the institute which the petitioner claim to be in the process of setting up. In view of the above, this Court passed order dated 18^th February, 2013

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W.P.(C).4292/13

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directing that a fresh inspection be conducted. Accordingly, an inspection was conducted and a report has been obtained by the learned Government Pleader which prima facie substantiates the case of the petitioner about its setting up an educational institution as claimed. That apart, the statement also confirms that the equipment transported by the petitioner are stored at different places. Therefore, prima facie there is no reason to suspect the bona fides of transportation.

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In such circumstances, although adjudication in terms of the provisions of the KVAT Act are pending, still I direct that the equipment detained by Ext.P9 shall be released to the petitioner and in the peculiar circumstances, the same shall be on executing a bond without sureties.

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Writ petition is disposed of as above.

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Sd/- ANTONY DOMINIC, JUDGE

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mrcs

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/true copy/ PA To Judge

M/S.Ogm Institute of Technical Society v. Intelligence Inspector, Kollam

Case brief

What is this about?

What did the court decide?

M/S.Ogm Institute of Technical Society v. Intelligence Inspector, Kollam

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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