IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 OT.Rev.No. 101 of 2010() ------------------------ TA.(VAT) NO. 253/2008 OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM .................... PETITIONER/APPELLANT IN T.A.(VAT) 253/2008 ---------------------------------------------------- M/S.NIRMA CONSUMER CARE LTD., CALICUT. BY ADV. SRI.R.RAMADAS RESPONDENT: RESPONDENT IN TA.(VAT) 253/2008 --------------------------------------------------------- STATE OF KERALA. GOVERNMENT PLEADER SRI. MUHAMMED RAFEEQ. THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 23/08/2011 ALONG WITH O.T.REV. NO. 13 OF 2010, THE COURT ON THE SAME DAY, PASSED THE FOLLOWING: O.T.(REV)101/2010 APPENDIX ANNEXURES ANNEXURE-A A TRUE COPY OF THE PENALTY ORDER DATED 24.12.2005 ISSUED BY THE INTELLIGENCE OFFICER, SQUAD NO. III, COMMERCIAL TAXES, KOZHIKODE. ANNEXURE-B TRUE COPY OF THE ORDER DATED 31.8.2007. ANNEXURE-C TRUE COPY OF THE ORDER DATED 17.8.2009. // TRUE COPY // P.S. TO JUDGE. KNC/- C.N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = O.T. REV. Nos. 101/2010 & 13/2011 = = = = = = = = = = = = DATED THIS, THE 23RD DAY OF AUGUST, 2011. J U D G M E N T C.N. Ramachandran Nair, J. Heard counsel for the petitioner and Government Pleader for respondents. Petitioner is a wholesale marketing agency of 'Nirma Products'. A consignment of stock was detained by the Intelligence Inspector pointing out various defects, which, according to the Department, amount to attempt of evasion of tax. In the first place, the delivery notes- original and duplicate, contained different dates besides other discrepancies. Secondly, the more serious problem faced by the petitioner is that there is nothing to indicate that the truck passed through two check posts on the National Highway, without which it could not have reached the destination from Kochi. Though penalty was levied at double the amount of tax and double the value of the goods detained was added to the turnover, in the course of two level appeals, the addition was reduced to equal amount both for penalty and for assessment. It is against these orders, the petitioner has filed these revision cases before us. 2. Counsel for the petitioner pointed out the practical difficulties O.T. REV. 101/2010 & 13/2011 2 faced by the petitioner, which does not have an office in Kochi, that led to the discrepancy in the entries in the delivery note, original and duplicate. According to the counsel, duplicate was sent through carrier and the original was filled up separately. However, Government Pleader submitted that this is a clear violation of the rule and could not be put forward as a defence against the orders. Further, the attempt of evasion of tax is inferred by the Department from the fact that the transport was not recorded in both the sales tax check posts at Karukutty and at Faroke. Petitioner's case is that transport is done by carrier and in the normal course, the driver would have taken the vehicle through the check post and probably, there was an omission to record the vehicle details at the check post. Even though this contention as such cannot be accepted, we find force in the contention of the counsel for the petitioner that the use of Departmental delivery note for transport itself indicates that the transport is genuine and that the petitioner did not make any effort to evade payment of tax. However, there is no explanation as to how the goods passed through two check posts without entering the goods details in the check post. Moreover, the difference in the date noted in the original and duplicate of the delivery note is three days, which appears to us very strange because, the truck reaches from Kochi to Kozhikode within six or seven hours. We therefore, feel only leniency can O.T. REV. 101/2010 & 13/2011 3 be shown in regard to penalty levied. Accordingly, we allow O.T. Rev. 101/2010 in part by reducing the penalty to Rs. 25,000/- (Rupees twenty five thousand only). So far as the assessment is concerned, the addition sustained is only the value of the goods detained. Since we have in principle, upheld the penalty, the addition of the value of the goods so detected for assessment cannot be cancelled. Accordingly, we dismiss O.T. Rev. 13/2011, confirming the assessment and addition. C.N. RAMACHANDRAN NAIR, (JUDGE). P.S. GOPINATHAN, (JUDGE) knc/-