IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 ST.Rev..No. 194 of 2010() ------------------------- TA.234/2009 of S.T.A.TRIBUNAL,ADDL.BENCH,PALAKKAD .................... PETITIONER/APPELLANT ---------------------------------------- M/S.SIEMENS LIMITED,PREETHI BUILDINGS, PALLIMUKKU,M.G.ROAD,ERNAKULAM,NOW AT K.G.OXFORD BUSINESS CENTRE,SREEKANDATH ROAD,RAVIPURAM, ERNAKULAM. BY ADV. SRI.JOSE JOSEPH RESPONDENT/RESPONDENT ------------------------- THE STATE OF KERALA. BY G.P. SRI.MOHAMMED RAFIQ THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON 12/01/2011 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. .................................................................... S.T. Rev. No.194 of 2010 .................................................................... Dated this the 12th day of January, 2011. JUDGMENT Ramachandran Nair, J. Order under challenge is that of the STAT confirming penalty levied on the petitioner under Section 29A(14) of the KGST Act. We have heard counsel appearing for the petitioner and Government Pleader for respondents. 2. The item transported was described in the transport document as “goods not for sale - testing and calibration equipment”. The detaining authority did not care to physically verify or identify the goods under transport. When the transporter described the item as one, the department can disbelieve it only after physically verifying and establishing that identity is not the same as stated in the transport document. Petitioner's specific case is that the goods brought were for testing and calibration and for servicing of the equipment sold by them and these goods were in fact sent back under cover of Form 27B issued by the petitioner. Government Pleader pointed out that the return S.T.Rev. 194/2010 2 of goods claimed by the petitioner was prior to adjudication and inspite of the same, in the reply to the notice, petitioner did not claim that goods were returned. In a similar matter we have remanded the case for verifying whether the goods brought and returned were testing or calibration equipments as claimed by the petitioner. Obviously if the goods were brought for testing or servicing and were taken back to the Branch of the Company outside Kerala, then there cannot be any evasion of tax. If the equipments were used for testing, then there will be records pertaining to servicing or repair of equipments sold by the petitioner to their customers. We feel one more opportunity can be given to the petitioner to establish the nature of transaction as testing and calibration equipments brought to Kerala for servicing purposes. Accordingly we set aside the order of the Tribunal and that of the first appellate authority and restore the matter to the officer with direction to the petitioner to produce proof before the original authority within three months from now for the Enquiry Officer to consider the same. If evidence is produced to the satisfaction of the officer, he will reverse S.T.Rev. 194/2010 3 the order revoking the penalty or otherwise he can sustain the penalty. C.N.RAMACHANDRAN NAIR Judge BHABANI PRASAD RAY Judge pms