IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 ST.Rev..No. 230 of 2007 -----------=----------------------- TA.336/2003 of S.T.A.TRIBUNAL,ADDL.BENCH,KOZHIKODE. .................... PETITIONER/ APPELLANT/ASSESSEE --------------------- M/S.V.S.EXPORTS AND IMPORTS, PUTHUPPADY P.O., MOOVATTUPUZHA REPRESENTED BY ITS PROPRIETOR, SHRI.V.U.SIDHIQUE. BY ADV. SRI.A.KUMAR RESPONDENT/ RESPONDENT/REVENUE: ---------------------- STATE OF KERALA REPRESENTED BY FINANCE SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER SRI. MOHAMMED RAFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L. DATTU, C.J. & A.K.BASHEER, J. --------------------------------- S.T.Rev. No.230 of 2007 --------------------------------- Dated this, the 2nd day of December, 2008 ORDER H.L. Dattu, C.J.: The assessee-firm has filed this tax revision case challenging the order of the Tribunal confirming the penalty proceedings initiated against it under Section 29A(4) of the K.G.S.T. Act, 1963. 2. The petitioner-assessee is a dealer engaged in the business of wood and wooden products. The petitioner has imported Pinkoda timber during the year 2001-02 from Myanmar in Burma. The timber logs were discharged at the Sea Port of Mangalore and were carried to the petitioner's branch at Moovattupuzha in a lorry. The Intelligence Officer, Mobile Squad-I, Mahe attached with the Commercial Taxes Department. Kozhikode detained the lorry containing the consignment of seven Pinkoda timber logs at Nanminda. It was noticed that no supporting documents accompany the transport of goods and at the time of interception, the driver of the lorry has stated that the Pinkoda logs are transported from Panambur and are to be unloaded at the timber mills at Arambram. Though the petitioner/assessee who is the owner of the goods at the time of enquiry stated that the original copy of the delivery note has been duly entered and verified in all the check posts of sales tax and forest, and produced books of accounts to support the consignment from Mangalore to Muvattupuzha, the Intelligence Officer noticed that the goods were detained at Nanminda ie. in S.T.Rev. No.230 of 2008 - 2- Balussery-Wayanad route and the assessee has no explanation for the reaching of goods at Nanminda which is far away from Mangalore Muvattupuzha route in N.H..17. Thus the Intelligence Officer came to the conclusion that the goods (timber logs) were transported to Nanminda for unaccounted sale and the dealer has no documents to support the transport of goods to Nanminda and found that there is an attempt to evade payment of tax due to the Government and accordingly passed an order imposing penalty of Rs.30,000/- . 3. The petitioner/assessee has challenged the order imposing penalty before the first appellate authority. There was no appearance on behalf of the assessee before the first appellate authority on the four dates when the appeals were posted for hearing, but the appellate authority has disposed of the appeal on merits. The first appellate authority noticed that there was no documents in support of the consignment in the vehicle and the statement of the driver confirm this fact and further the appellant has not produced accounts to prove that there was no attempt for evasion of tax. Accordingly, the first appellate authority sustained the impugned order of penalty. 4. The assessee carried the matter before the Appellate Tribunal. It was contended that the goods transported were accompanied by proper documents and it is the fault of the driver for not producing the S.T.Rev. No.230 of 2008 - 3 - same before the Intelligence Officer. It is further stated that the goods cannot be sold as unaccounted, because the goods have come to Mangalore port with all import documents and all these documents were produced before the Intelligence Officer. Petitioner also took up the contention that the transaction has been properly accounted in the day book which was produced before the Intelligence Officer and further that the original delivery note has been verified in all the Sales Tax Check Posts and also Forest Checkposts, and therefore mere statement of the driver of the vehicle that there are no documents cannot be taken as a ground to impose penalty under Section 29A(4) of the KGST Act. It was also contended that petitioner was unaware as to why the lorry went to Nanminda and he has no contact with the lorry after it left the Mangalore port. 5. The Tribunal noticed that there was no documents to support the transport and the statement of the driver clearly showed that the goods were to be unloaded as Arambram. It was also noticed that the petitioner has failed to produce the documents before the Intelligence Officer when the vehicle was intercepted and it has simply furnished bank guarantee towards the security amount. The Tribunal further noticed that documents subsequently produced by the appellant relate to transport of some other consignment and so the said document cannot be relied on. In such circumstances, the Tribunal concurred with the findings of the S.T.Rev. No.230 of 2008 - 4- authorities below that there was an attempt to evade payment of tax and accordingly, confirmed the penalty order. 6. The assessee being aggrieved by the order passed by the Tribunal is before us in this Tax Revision Case. 7. The assessee has raised the following questions of law for our consideration and decision. They are:- “1. Whether on the facts and in the circumstances of the case, the Appellate Tribunal and the authorities below were justified in the imposition of penalty under Section 29A(4) of the KGST Act? 2. Whether on the facts and in the circumstances of the case the Appellate Tribunal and the authorities below erred in not looking at the documents produced at the time of enquiry, which culminated in the imposition of penalty? 3. Whether on the facts and in the circumstances of the case has not the Tribunal erred in confirming the orders of the authorities levying penalty at the maximum, and is not the order passed mechanically? 8. The Tribunal after considering the contentions raised by the assessee and the revenue has observed as follows:- “The records reveal that the vehicle was intercepted at Nanminda which is not on the way from Mangalore to Muvattupuzha. Further the statement of the Driver clearly reveal that the goods were intended to be unloaded at Arambram. The appellant has failed to produce S.T.Rev. No.230 of 2008 - 5 - the documents before the Intelligence Officer when the vehicle was intercepted. Instead they have simply furnished Bank Guarantee for Rs.30,000/-. Considering all the above, it is proved that there was an attempt at evasion of tax at the time when the vehicle was intercepted. Therefore the finding of the authorities below is found according to law.”. 9. Since the decision rendered in purely based on appreciation of facts and since it does not involve any question of law for our consideration and decision, we decline to entertain this Tax Revision Case. Therefore, the revision requires to be rejected and it is accordingly rejected. Ordered accordingly. Sd/- H.L. Dattu, Chief Justice. Sd/- A.K.Basheer, Judge. DK. (True copy)