K.M. Joseph, J.

1. Appellant is the writ petitioner. Appellant filed the Writ Petition seeking to quash Ext.P3 notice issued by the second respondent/Commercial Tax Officer. The further relief sought was to release the goods detained as per Ext.P3 unconditionally.

2. Briefly put, the case of the appellant is as follows:

Appellant is running a unit engaged in the manufacture and sale of soaps. He is an assessee under the Kerala Value Added Tax Act, 2003 (hereinafter referred to as the Act). The soaps manufactured by the appellant were detained under Section 47 of the Act. According to the appellant, the appellant had received an order from M/s. Jack Pharma. Appellant was instructed to manufacture the soaps under the brand name of the said concern. Appellant was only directed to collect the manufacturing cost and a fairly good amount of profit. Accordingly, the appellant was not entitled to sell the soaps to anyone other than the said M/s. Jack Pharma. Appellant collected Rs.11/30 per piece of soap according to Ext.P1 invoice. According to the appellant, this was the agreed price between the appellant and the party at Madurai. Ext.P2 is the declaration in Form 8F filed by the appellant for the transport of the above goods. While the above goods were being sent to Madurai, they were detained at the Gopalapuram check post by Ext.P3 notice. The reason which is described as the sole reason by the appellant is that the price shown per piece is Rs.11.50 is too low when compared to the branded price of Rs.70/= on the wrapper. Appellant filed Exts.P5 and P6 objections. The objections are apparently based on Ext.P4 circular. Ext.P4 circular relates, according to the appellant, to the manner in which and the situation in which Section 45 of the Act is to be invoked. Section 45 of the Act reads as follows:

"45. Purchase of goods to prevent under valuation:-

The assessing authority or any other officer empowered in this behalf by the Government is satisfied that any dealer with a view to evade payment of tax, shows in his accounts, sale or purchase of any goods at prices lower than the prevailing market price of such goods, shall have the power to purchase such goods at a price of ten per cent above the purchase value or the value disclosed by any principal or agent in the case of goods received on consignment basis plus transporting charges and entrust such goods for sale to the Kerala State Civil Supplies Corporation Ltd. Or Kerala State Marketing Federation Limited or to any such public distribution system or sell such goods in public auction."

3. It is the case of the appellant that it is mandatory on the part of the second respondent to have effected purchase of the soaps at the price shown in the Invoice and ten per cent above the value. It is accordingly that the appellant approached this Court for the reliefs sought for.

4. The learned Single Judge took the view that as far as the prayer for quashing Ext.P3 is concerned, a similar Writ Petition was disposed of directing adjudication to be conducted and in the meanwhile, the goods be released subject to the petitioner therein furnishing bank guarantee for the security demanded. The learned Single Judge further noticed the further contention raised by the appellant based on Sections 45 and Ext.P4 Circular. The learned Single Judge did not find merit in the said contention on the basis that both the provision and the circular only show that it is only an enabling power of the respondents and there is no mandatory-obligation for them to purchase the goods in each and every case when their statutory powers are exercised. The learned Single Judge only directed that if the appellant furnishes bank guarantee for the security demanded, the goods will be released. It is feeling aggrieved by the same that the appellant is before us.

5. We heard the learned counsel for the appellant and the learned Government Pleader.

6. Learned counsel for the appellant would, no doubt, contend t