IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 25TH AUGUST, 2008 / 3RD BHADRA, 1930 ST.Rev..No. 27 of 2008 (TA.120/2006 of S.T.A.TRIBUNAL, ADDL.BENCH, KOZHIKODE) .................... PETITIONERS/APPELLANT/ASSESSEE: ------------------------------------------------ PORPYL PACKS (P) LIMITED: KODUNGALLOOR REP. BY MANAGING DIRECTOR, K.S.SALEESH. BY ADV. SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN RESPONDENTS/RESPONDENTS: -------------------------------------- 1. SALES TAX INSPECTOR, STCP, B.MANJESHWAR 2. SALES TAX OFFICER (ENQ), OFFICE OF THE DEPUTY COMMISSIONER, KASARAGODE. 3. DEPUTY COMMISSIONER (APPEALS), CALICUT. 4. STATE OF KERALA REPRESENTED BY COMMISSIONER OF COM. TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.TEK CHAND. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ------------------------------------ S.T.Rev.No. 27 of 2008 ------------------------------------ Dated this the 25th day of August, 2008 J U D G M E N T Ramachandran Nair,J: The revision petition is filed against the order of penalty levied under Section 29A(4) of the Kerala General Sales Tax Act, confirmed by the First Appellate Authority and Tribunal in second appeal. The petitioner is engaged in manufacture of Polythene bags and the raw material is sourced from Bombay. A truck load of Polythene granules transported with photocopies of the invoices in favour of the petitioner was detained in the check post. The petitioner got the goods released by furnishing bank guarantee for the security amount. In the enquiry, the petitioner produced original of the invoices and contended that original was received by the petitioner's purchasing agent at Bombay and transmitted the same to the petitioner. However, the goods were sent under cover of photo copy of the invoices is a conceded position. According to the petitioner, the authorities levied penalty S.T.Rev.NO.27 of 2008 :-2-: merely because original invoice has not accompanied the goods. Counsel referred to two decisions of this Court reported in Mc Dowell v. Sales Tax Officer [1993(2) KLT 265] and V.V.Agencies v. State of Kerala [1996(2) KLT 626] wherein this Court held that the documents can be produced in enquiry and if evasion of tax is not proved, no penalty could be levied under Section 29A(4) of the K.G.S.T.Act. 2. Government Pleader, on the other hand, contended that it is not only a case of petitioner transporting goods without the original invoice, but there was a correction in the invoice used for transporting goods where the original truck number given was MX 11M 4139 which was later corrected to MX 11M 4377. Even though we agree with the contention of counsel for the petitioner that penalty could be levied under Section 29A(4) only if the petitioner is found guilty of attempting evasion of tax, we do not think, any interference is called for in the Tribunal's order because, in this case, the only inference S.T.Rev.NO.27 of 2008 :-3-: possible is attempt of evasion of tax for more than one reason. In the first place, the petitioner's agency transaction relied on by the petitioner does not stand proved by any document produced or attempted to be produced at any stage of enquiry or in appeals before the two authorities. Admittedly, it is the finding of the Tribunal that goods were consigned not by the so-called agent, but by the supplier from Bombay directly to the petitioner. We see no reason why the goods were not accompanied by the original invoice issued by the supplier who supplied the goods directly to the petitioner. More over, the correction of the truck number in which transport effected is also not explained in any stage. The Tribunal rightly pointed out that suppliers are regular dealers in the goods and they are well aware of the requirement of the consignment of goods under the cover of original invoice. Even though counsel for the petitioner furnished the details of payments made through demand draft to the supplier, we do not think, the same can lead to an inference that S.T.Rev.NO.27 of 2008 :-4-: the goods under the cover of photocopy of the invoices refers to the same goods. In the absence of any proof of agency and exceptional circumstances under which goods were transported other than through authorised document namely, original sale invoice, the only inference is attempt of evasion of tax and therefore, we find no ground to interfere with the order of the Tribunal. The Sales Tax Revision Case is accordingly dismissed. C.N.RAMACHANDRAN NAIR, Judge V.K.MOHANAN, Judge MBS/ S.T.Rev.NO.27 of 2008 :-5-: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. -------------------------------------------- I.T.A.NO. 81 OF 2000 ------------------------------------ J U D G M E N T S.T.Rev.NO.27 of 2008 :-6-: DATED:17-6-2008 S.T.Rev.NO.27 of 2008 :-7-: