IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :- THE HONOURA BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 ST.Rev..No.139 of 2007 --------------------------------------- (ORDER OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE IN TA.484/2004 DATED 4.4.2006) (ASSESSMENT YEAR 2001-2002) .................... REVISION PETITIONER/APPELLANT/APPELLANT/ASSESSEE:- -------------------------------------------------------------------------------------- K.ZUBAIDA, M/S.REMSHID ENTERPRISES, GOPAL STREET, KANNUR-1. BY ADV. SRI.V.RAJAGOPAL SRI.G.MOHAN. RESPONDENT/RESPONDENT/RESPONDENT/REVENUE:- ------------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY JOINT COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------------------ S.T.Rev.No.139 of 2007 --------------------------------------------- Dated, this the Ist day of December, 2008 O R D E R H.L.Dattu, C.J. The assessee being aggrieved by the orders passed by the Kerala Sales Tax Appellate Tribunal, Additional Bench, Kozhikode in T.A.No.484/2004 dated 04.04.2006 is before us in this tax revision petition. (2). Penalty proceedings was initiated by the Intelligence Officer, Commercial Taxes, Thalassery, after intercepting the vehicle carrying consignment of Marbles transported to the assessee's shop, on the ground that, it is not supported by necessary documents. After holding an enquiry under Section 29A of the Kerala General Sales Tax Act (“KGST Act” for short), and after finding that the persons in charge of the goods vehicle were not carrying documents as required under Section 29A of the KGST Act, and further, the petitioner has not registered himself as a dealer in Marbles, the Intelligence Officer has imposed a penalty of Rs.40,200/-. (3). The orders passed by the Intelligence Officer in exercise of his power under Section 29A of the KGST Act had been called in question by the assessee before the first appellate authority. Even before the first appellate authority, the only document that was produced by the assessee was S.T.Rev.No. 139/2007 -2- the photo copy of the bill said to have been issued by the supplier in favour of the assessee. (4). It was also stated by the assessee before the first appellate authority that, she had already made an application before the Registering Authority to incorporate in the Registration Certificate that the assessee is a dealer in Marbles, and, therefore, the Intelligence Officer was not justified in intercepting the vehicle carrying Marbles, and also levying penalty of Rs.40,200/-. (5). This version of the assessee was not accepted by the first appellate authority, and accordingly, has rejected the appeal. (6). The matter had been carried by the assessee before the Sales Tax Appellate Tribunal in T.A.No.484/2004. The very contention before the first appellate authority had also been canvassed before the Tribunal. The Tribunal, while answering each of the contentions raised by the assessee, by its detailed and well-considered order, has rejected the second appeal filed by the assessee. (7). Calling in question the correctness or otherwise of the orders passed by the Tribunal, the assessee is before us in this Tax Revision Petition. (8). The questions of law framed by the assessee for our S.T.Rev.No. 139/2007 -3- consideration and decision are as under: “A. Is not the imposition of penalty on the petitioner under section 29A unwarranted in as much as there was no basis to conclude that the assessee had attempted to evade tax with reference to the consignment in question which was admittedly declared at the border check post? B. Whether the authorities below are justified in their finding that the petitioner is not a dealer in Marble in view of the fact that she has already applied for inclusion of Marble in the Registration Certificate as early as in 2000 as evidenced by Annexure A and it has been duly acknowledged by the assessing authority? C. Whether the lower authorities are justified in imposing maximum penalty on the petitioner, especially when the petitioner has accounted the subject consignment of marble and suffered the tax thereto?” (9). Sri.G.Mohan, learned counsel appearing for the revision petitioner, at the time of hearing the revision petition for admission would submit that, the assessee had already filed an application before the Registering Authority to register the assessee as a dealer in Marbles, and, secondly, no proper opportunity of hearing was given to the assessee by the Intelligence Officer of the Department. Both these contentions are answered by the Tribunal at paragraphs 4 and 5 of its order. Paragraphs 4 and 5 of the order of the Tribunal read as follows: S.T.Rev.No. 139/2007 -4- “4. The main contention raised by the appellant is that, the fact that she had applied for inclusion of Marbles in the Registration Certificate as early as on 6-10-00 was not properly appreciated by the lower authorities. The learned representative for the appellant had produced photostat copy of letter dt. 6-10-00 addressed to the Addl.Sales-tax Officer, Ist Circle, Kannur. He had also invited our attention to photostat copy of Page No.12 of local delivery book, in which, there is an endorsement dt.6-10-00, and according to the learned representative for the appellant, it relates to the application dt.6-10-00. It is significant to note that, the alleged initial dt.6-10-00 is not supported by any official seal. The Ist appellate authority who had occasion to consider the very same contention had found that, the receipt of the alleged letter dt.6-10-00 was not properly authenticated by any departmental authority with either name, designation or seal. Admittedly, the RC issued to the appellant does not include marble. The appellant has no case to the fact that, Marble was incorporated in the RC by way of making necessary amendments as per sub-section (7) of Sec.14 of the KGST Act. In the absence of any valid documents evidencing that marble was included in the RC issued to the appellant, we are of the view that, the Int.Officer had rightly intercepted the vehicle on 30-1- 02. It is significant to note that, at that time, it was found that the only document available in the vehicle was photostat copy of bill dt.22-1-02. In the absence of any valid RC, the Int.Officer had rightly found that, the consignee was not registered dealer in marble. It was further found that, the consignee had not returned any sale of marble till that date. From a perusal of the order of the Int. Officer dt.27-3-02, we are of the view that, it was on the basis of valid grounds that the Int.Officer, by way of invoking the power u/s.29A (4) of the KGST Act, had imposed a penalty of Rs.40,200/-. S.T.Rev.No. 139/2007 -5- 5. It was contended by the learned representative of the appellant that, in fact, no opportunity of being heard was given to the appellant by the Int.Officer before passing the impugned order. To substantiate that contention, he had produced photostat copy of notice issued by the Int.Officer, Kannur, requesting the appellant to appear on 27-3-02 at about 11 AM. It is the case of the appellant that, even though she had appeared before the Int Officer on 27-3-02, the case was adjourned to 3-4-02 by way of making an entry in the notice already issued to her. It is true that, 3-4-02 is seen written in the photostat copy of the notice produced before us. But, whether it was written by the Int.Officer or by some-body as per his direction has not been proved by the appellant. That apart, a perusal of the records available before us show that, on 27-3-02, the appellant had appeared before the Int.Officer and explained her case and it was after considering the objection raised by her that the Int.Officer was pleased to impose a penalty of Rs.40,200/-. So, in the absence of any reliable materials, prima facie, we are not in a position to accept the case of the appellant that the impugned order was passed without affording an opportunity of being heard.” (10). Having carefully gone through the findings and conclusion reached by the Tribunal, we are in full agreement with the reasoning and conclusion reached by the Tribunal. We do not think that this is one of those cases which requires our interference in exercise of the powers under Section 41 of KGST Act. Consequently, while affirming the orders passed by the Tribunal, we reject the revision petition. (11). In view of the order passed in the revision petition, no S.T.Rev.No. 139/2007 -6- order need be passed in I.A.No.1009/2007, and therefore, it is closed. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS