IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 OT.Rev.No. 1 of 2010() ---------------------- TA.(VAT) 196/2008 of KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM .................... PETITIONER/APPELLANT ---------------------------------------- M/S.SIEMENS LIMITED, M.G.ROAD, ERNAKULAM NOW AT SREEKANDATH ROAD, RAVIPURAM, ERNAKULAM. BY ADV. SRI.JOSE JOSEPH RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA. BY G.P. SRI. MOHAMMED RAFEEQ THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 30.8.2010 ALONG WITH OTRV NO. 5 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR, & K. SURENDRA MOHAN, JJ. -------------------------------------------- O.T. Rev. (VAT) Nos. 1 & 5 of 2010 -------------------------------------------- Dated this the 30th day of August, 2010 JUDGMENT Ramachandran Nair, J. The question raised in the connected Revision Cases, one by the assessee and the other by the Department, is whether penalty was rightly levied on the assessee for attempted evasion of tax under Section 47(6) of the Kerala Value Added Tax Act. The assessee, among other activities, is engaged in manufacture and sale of medical equipments, including MRI scan machines. Assessee's case is that consignment in respect of which penalty is levied was a set of five items of tools brought to Amrita Institute of Medical Sciences from Mumbai for calibration and servicing of MRI machines installed by them there. Out of five items, three were stated to be imported. According to the assessee none of the items is meant for sale and all the items transported back from Kerala were brought to Kerala from Mumbai. During hearing of the case on the last occasion, we directed the assessee to file a detailed affidavit stating the factual position. Now the assessee has filed an affidavit along with Annexures A to G which are images of the tools that were transported. The notice issued by the OTRV 1 & 5/2010 2 department contains the details of the items transported. In view of the fresh evidence produced by the assessee, we feel the matter requires reconsideration. If the items were tools brought for repair and calibration then there is no scope for penalty, no matter, whether there is a technical error in using a wrong form for transport. The revision filed by the State is against quantum relief granted by the Tribunal. We feel the assessee should be given one more opportunity to demonstrate before the Tribunal with evidence that the items transported were tools and were originally brought to Kerala for calibration and repair of equipments. Revisions are disposed of vacating the order of the Tribunal and by restoring the appeal to the file of the Tribunal for taking evidence for deciding the case afresh after giving opportunity to both sides. The Tribunal will give an opportunity to the assessee to produce inward transport register , the identity and description of items brought to Kerala and taken back in the consignment, etc. (C.N.RAMACHANDRAN NAIR) Judge. (K. SURENDRA MOHAN) kk Judge. OTRV 1 & 5/2010 3