IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 ST.Rev..No. 245 of 2009() ------------------------- T.A.266/2008 of S.T.A.T.ADDL.BENCH,TVM. .................... REVISION PETITIONERS/ASSESSEE/APPELLANT ----------------------------------------------------------- M/S.BRIGHT AUTO SPARES, 34/728A, KANNANTHOTTATHU ROAD, HIGH SCHOOL JUNCTION, EDAPPALLY, KOCHI-24. BY ADV. SRI.E.P.GOVINDAN RESPONDENT/REVENUE/RESPONDENT: ---------------------- STATE OF KERALA REPRESENTED BY SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY G.P. SRI.MOHAMMED RAFIQ THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... S.T. Rev. No.245 of 2009 .................................................................... Dated this the 14th day of December, 2009. JUDGMENT Ramachandran Nair, J. The revision is filed by the assessee challenging the levy of penalty under Section 45A of the KGST Act for unaccounted purchase and sale of goods namely, automobile spares in the name of a closed unit. We have heard counsel appearing for the petitioner and Government Pleader for respondent. 2. The petitioner is a dealer in automobile spare parts with main office at Kochi and Branch office at Quilon. The department's case is that during the year 2003-2004, petitioner made interstate purchase of automobile spares in a bogus name Kochin Autoways, but by using the registration number of a closed unit by name Classic Automobiles which had cancelled the registration and sold the goods without accounting and without payment of tax. The petitioner's was a case of denial of the entire transaction. However, Government Pleader has 2 produced copy of the letter issued by the assessee offering to compound the offence by remitting compounding fee. However, it is seen from the penalty order that though petitioner offered to compound the offence, petitioner did not follow-up the matter and therefore, penalty was levied based on evidence collected confirming the transaction i.e. purchase in bogus names and with cancelled registration number of another industry as having been made by the petitioner. 3. Counsel for the petitioner submitted that evidence recorded from three persons namely, Manager of the Transport Company, an ex- employee of the company and a cooli who took delivery and transport of goods, were done without his knowledge and without giving opportunity to him to cross-examine. Counsel has relied on the reply to show cause notice filed by the petitioner requesting for copies of the statements recorded without their knowledge. According to the counsel, copies of these statements were received only in first revisional stage and therefore, the statements could not be relied on. Counsel has also relied on decision of this court in M.DORAISWAMY VS. STATE OF KERALA (reported in 2001 (9) KTR 291) and contended that statements recorded without giving an opportunity to 3 cross-examine to the petitioner are unreliable. 4. Even though petitioner was not given an opportunity to cross- examine the witnesses, we notice that there was clinching evidence against the petitioner in this case because in the letter head printed in bogus name, the telephone number appearing was that of the petitioner's. Further, the Manager of the Transport Company has himself produced a claim made by the petitioner in the name of the bogus consignee in it's letter head but containing the petitioner's telephone number and later, the shortage in delivery was sorted out. The cooli who took delivery and transported the goods in the name of the bogus consignee has given convincing evidence to the department that the goods were delivered to the petitioner's branch at Quilon. The department in fact found out that the telephone number shown in the letter head of the bogus firm used by the petitioner was that of one Mr.Sathyan of the petitioner's firm at Ernakulam. The said Mr.Sathyan is none other than a partner of the petitioner-firm. In view of the documentary evidence available and the proof obtained by the department from the BSNL that the telephone number shown in the letter head of the bogus firm is that of the partner of the petitioner-firm, 4 we do not think any further evidence is required to connect the bogus purchases with the petitioner. Therefore, we do not think the denial of cross-examination has prejudiced the interest of the petitioner. Besides this, it is on record that another consignment reached in the name of the same bogus party was detained at the Check Post and one of the partners of the petitioner-firm got it released. Since the department has established with documentary evidence that the purchases in bogus name were made by the petitioner, we do not think denial of cross- examination of some of the witnesses any way is prejudicial to the interest of the petitioner because even without relying on their evidence the transaction stands proved against the petitioner. We, therefore, do not find any ground to interfere with the order of the Tribunal confirming the penalty. Revision is consequently dismissed. C.N.RAMACHANDRAN NAIR Judge V.K.MOHANAN Judge pms