IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929. MFA.No. 691 of 2003() --------------------- AGAINST THE ORDER DATED 25/09/2003 IN CT IN R2.11070/2001 of COMMR. OF COMMERCIAL TAXES, TRIVANDRUM .................... APPELLANT:- --------- P.A.JAMES & BROTHERS, GROCERY DEALER, USLAMPETTY. BY ADV. SRI.JOSE JOSEPH RESPONDENT: ---------- COMMISSIONER OF COMMERCIAL TAXES, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. BY SHRI.K.P.PRADEEP, GOVT. PLEADER. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN IA NO.2844/03 IN MFA 691/03 DISMISSED. 15/1/2008 SD/- C.N. RAMACHANDRAN NAIR, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE C.N.RAMACHANDRAN NAIR, & T.R.RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = M.F.A.No.691 of 2003-E. = = = = = = = = = = = = = = = = Dated this the 15th day of January, 2008. J U D G M E N T This is an appeal filed by a business concern from Tamil Nadu against the order of the Commissioner of Commercial Taxes, Thiruvananthapuram under Section 37 of the Kerala General Sales Tax Act. The sales tax authorities noticed from the check post records that the appellant made sale of jaggery from Tamil Nadu to various dealers in Kerala. However, when notices were issued, the purchasers in Kerala denied the transactions. Since the purchases were denied by the dealers in Kerala, notices were issued to the appellant under Section 30B(4) of the KGST Act asking to prove the sale with the identity of dealers in Kerala. The appellant sought opportunity to cross-examine the purchasers in Kerala. Even though notices were issued, the purchasers did not turn up to give evidence for appellant. However, the appellant did not produce any evidence regarding the details of payments received or receipts issued. In other words transactions M.F.A.No.691 of 2003-E. 2 could not be proved by the appellant as sales made to the dealers shown in the documents. This lead to levy of penalty on the appellant under Section 30B(4) of the KGST Act. When the appellant filed revision against the orders issued by the assessing officer, the Deputy Commissioner allowed the revision stating that the imposition of penalty under Sec.30B(4) is not justified. Accordingly he cancelled the penalty order. The Commissioner of Commercial Taxes in exercise of a suo motu revisional power under Section 37 of the KGST Act reversed the order of the Deputy Commissioner and restored penalty by holding that the penalty provided under Section 30B(3) of the KGST Act applies to the proceedings under Sec.30B(4) of the Act also. The appellant has come up in appeal against this order. 2. We have heard the counsel appearing for the appellant and the Government Pleader appearing for the respondent. 3. In order to appreciate the contentions we have to refer to the relevant clauses in Sec.30B of the KGST Act and for easy reference those provisions are extracted below: “30B. Transit of goods through the State and issue of transit pass:- (1) When a vehicle or vessel carrying goods from any place outside the State and bound for any place outside the State passes through the State, the owner or M.F.A.No.691 of 2003-E. 3 driver or person in charge of such vehicle or vessel shall obtain a transit pass in the prescribed form for such goods from the officer-in-charge of the first check post after his entry into the State and deliver it to the officer-in-charge of the last check post before his exist from the State. (2) If the owner or driver or person in charge of such vehicle or vessel fails to deliver the transit pass for such goods referred to in sub-section (1) to the last check post, it shall be presumed that such goods which are liable to tax under this Act have been delivered within the State for sale: Provided that where the goods carried by such vehicle or vessel are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that goods have actually moved out of the State, shall be on the owner or driver or person in charge of the vehicle or the vessel, as the case may be. (3) Where it is presumed under sub-section (2) that the goods carried in a vehicle or vessel have been delivered within the State for sale by the owner or driver or person in charge of the vehicle or vessel, such owner or driver person in charge of the vehicle or vessel shall be jointly or severally liable to pay tax which shall be assessed and recovered in accordance with the relevant provisions of this Act, irrespective of the limit of any turnover together with an amount of penalty not exceeding twice the amount of such tax as may be assessed, after having given to the person or persons aforesaid an opportunity of being heard by the assessing authority under whose jurisdiction the check post is situate. (4) Where any person consigns any goods or transports any goods from another State into the State and where the particulars furnished in the declaration prescribed in Clause (b) of sub-section (2) of Section 29 are M.F.A.No.691 of 2003-E. 4 false or the consignee or purchaser stated therein is found to be bogus or non-existent or is not traceable or denies such purchase, it shall, unless the consignor or the owner of the vehicle or the person in charge of the vehicle proves to the satisfaction of the assessing authority that the particulars furnished in the declaration are true, be presumed that such goods which are liable to tax under this Act have been sold in the State by the consignor or the owner of the goods or the owner or driver or person in charge f the vehicle or the person in charge of the goods or all of them jointly and they shall be jointly or severally liable to pay tax on such sales which shall be assessed and recovered in the manner provided in sub-section (3). (5) For the purpose of this Section, the owner or driver or person in charge of the vehicle or vessel shall, unless he is a registered dealer under this Act, be deemed to be a registered dealer for assessment of tax under this Act. The question arising for consideration is whether penalty can be levied along with tax or independently under Sec.30B(4) of the KGST Act. The case of the petitioner is that in the absence of specific provision providing for penalty under Sec.30B(4) of the KGST Act penalty cannot be levied in proceedings initiated for levy of tax under the said provision. However, on the other hand the Government Pleader submits that clause 3 of Section 30B provides for levy of penalty along with tax and so much so penalty can be levied along with tax on dealers like the petitioner assessed under Sec.30B(4) of the Act. Sub Sec.2 of Sec.30B provides that, if the owner or driver or person in charge of M.F.A.No.691 of 2003-E. 5 such vehicle or vessel fails to deliver the transit pass for such goods referred to in sub-section (1) to the last check post, it shall be presumed that such goods which are liable to tax under this Act have been delivered within the State for sale. Clause (3) of Sec.30B provides for the levy of tax and penalty on the owner, driver or person in charge of vehicle or vessel used for the transport of the goods against whom presumption of sale of goods in the State is available under clause (2) of Sec.30B. What is stated in sub clause (3) is that tax in such cases has to be levied, assessed and recovered in accordance with the relevant provisions of the Act irrespective of the turn over limit that attracts tax. It is further provided therein that along with tax penalty not in excess of twice the amount of tax also should be levied and recovered. Sub Sec.3 of Sec.30B is therefore not only a procedural provision but is also a substantive provision authorising levy and recovery of tax and penalty. Penalty is mandatory under sub Sec.3 and the discretion left with the officer is only on quantum of penalty; the maximum being twice the amount of tax. Penalty under clause (3) of Sec.30B should be levied in accordance with the provisions of Sec.45A of the Act. So far as clause (4) of Sec.30B is concerned, the principle therein is similar to M.F.A.No.691 of 2003-E. 6 that contained in Sec.30B(2) of the Act. While clause (2) provides for a presumption of liability on the person who fails to surrender the transit pass at the check post. Clause (4) authorises presumption of local sale in the State by the dealer who transport the goods from out side the Kerala State to Kerala but fails to prove the nature of transaction in Kerala. What is stated in clause (4) is that a dealer transporting goods to Kerala not failing to prove the transaction will be liable to pay tax under the Act in Kerala. The principle contained in both clauses (2) and (4) of Section 30B are one and the same because levy of tax is not on actual sales but based on presumption permissible under the said provisions. The balance is only the procedure for assessment of tax and levy of penalty. Both the persons covered by clauses (2) and (4) of Sec.30B are liable to pay tax and penalty payable under Sec.45A of the Act. Instead of repetiting all what is stated in clause (3), clause (4) incorporates clause (3) as such. In other words, the person against whom tax is assessed under clause (4) of Sec.30B can be subjected to penalty in the same manner it is provided under clause (3). 4. We, therefore, find that the Deputy Commissioner committed an error in holding that penalty cannot be levied in M.F.A.No.691 of 2003-E. 7 proceedings under Sec.30B(4) and the Commissioner rightly reversed the order in suo moto proceedings. Even though the counsel for the petitioner requested to remand the matter for consideration of quantum of penalty by the Commissioner, we do not think it is not a fit case for that purpose. We therefore reject the plea. The appeal, therefore, fails and it is accordingly dismissed. C.N.RAMACHANDRAN NAIR, JUDGE. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-