IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 ST.Rev..No.167 of 2008 --------------------------------------- (ORDER DATED 30-3-2006 IN TA.165/2005 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOTTAYAM) .................... REVISION PETITIONER/ APPELLANT/ASSESSEE: -------------------------------------------------------------------- E.J.SCARIA, PROPRIETOR, M/S. DIAMOND RUBBER WORKS, THRIKODITHANAM, CHANGANACHERRY. BY ADV. SRI.S.JAYAKRISHNAN RESPONDENT: RESPONDENT/REVENUE: ---------------------------------------------------------- STATE OF KERALA, REPRESENTED BY ITS FINANCE SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 17/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------------------ S.T.Rev.No.167 of 2008 --------------------------------------------- Dated, this the 17th day of July, 2008 O R D E R H.L.Dattu, C.J. At paragraph 5 of the order dated 30-3-2006, the Sales Tax Appellate Tribunal, has noticed the factual matrix of this case and has come to the conclusion that the first appellate authority had no reason, whatsoever, to have allowed the assessee's appeal. Having come to that conclusion, the Tribunal has set aside the orders passed by the first appellate authority and has confirmed the orders passed by the Intelligence Officer, Squad No.II, Alappuzha. Paragraph 5 of the order passed by the Tribunal reads as under: “We heard both sides and examined the rival arguments with reference to the records. At the time of vehicle checking notice under Sec.29A was given to the driver of the vehicle pointing out the following irregularities: “.....While intercepted the vehicle No.KL 5C- 4602 at Nedumudy on 25-10-2003 at 8.30 A.M. transported goods from Thrikodithanam to Thiruvizha with accompanied documents. Verified the documents. It is seen that 3000 Nos. of Rubber Stud Mats 60 x 40 MM Black was transported by invoice No.1544 dated 25-10-2003 to East West Exports, Thiruvizha, Chertallai. The invoice recovered issuing receipt for further verification. At S.T.Rev.No. 167/2008 -2- 9.30 A.M. the vehicle NO.KL 3B-4399 intercepted near Perunnai, it is seen that the goods are transported by the same as the above recovered documents. Two transactions made by same numbered and dated invoice. It is clear evasion of tax. Hence bonafides of the transport and the genuineness of the documents and thereby an attempted evasion of tax is suspected......” On verification of the books of accounts produced before us it is seen that both the transactions as per the two vehicles intercepted on 25-10-2003 at 8.30 A.M. and 9.30 A.M. are accounted in the books of accounts. But it is also seen that in respect of no other bill a second transaction is accounted which in turn goes to establish that the respondent had the practice of transporting goods using different bills having the same serial number and date for the purpose of evading tax. But for the interception, the transactions under dispute also would have been left unaccounted. Both the vehicles were intercepted one at 8.30 A.M. and one at 9.30 A.M. and recovering the sale bills, the attempt of evasion came into light. Since it is proved beyond doubt that the respondent had transported goods at 8.30 A.M. and 9.30 A.M. in two different vehicles to two different parties using bills having the same serial Number and date attempt to evade tax is established. The first appellate authority's direction to refund the security deposit is observing that: “....It is seen that the Intelligence Officer has not established the maintenance of parallel sale bills by the appellant as the Intelligence Officer himself has verified the two transactions under cover of the very same serial number of a single bill. Moreover both the purchaser and seller are local registered dealers also. As such, there is no question of wilful attempt of evasion of tax involved in this case. I therefore, delete the penalty proceedings of the Intelligence Officer, Squad No.II, Alappuzha in this case and order to refund S.T.Rev.No. 167/2008 -3- the security deposit collected and converted as penalty.....” The observation of the first appellate authority is irrelevant and this is not sufficient to cancel the penalty proceedings which was passed on valid materials. So we set aside the order of the first appellate authority restoring the penalty proceeding.” 2. Having gone through the orders passed by the Tribunal, we do not find any illegality in the orders passed by the Tribunal, which would call for our interference in this tax revision case. Therefore, the Sales Tax Revision requires to be rejected and accordingly it is rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS