Kerala High Court
Vijay Sitaram Yalase vs Commercial Tax Inspector on 5 April, 1994
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935
WP(C).No. 5416 of 2014 (B)
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PETITIONER :
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VIJAY SITARAM YALASE
PLOT NO. 37, NEAR RAJYA KARMACHARI SOCIEY,
ASHOK NAGAR, SAPTUR, NASHIK - 422 012.
BY ADVS.SRI.TOMSON T. EMMANUEL
SRI.JENSON FRANCIS PAYANKAN
RESPONDENT(S) :
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1. COMMERCIAL TAX INSPECTOR
COMMERCIAL TAXES CHECK POST, B. MANJESWAR
KASARGOD -671 323.
2. COMMERCIAL TAX OFFICER,
COMMERCIAL TAXES, IST CIRCLE,
KASARGOD - 671 121.
3. COMMERCIAL TAX INSPECTOR,
COMMERCIAL TAXES CHECK POST,
NEW MAHE- 673 311.
4. COMMISSIONER OF COMMERCIAL TAXES,
TAX TOWER, KARAMANA P.O.
THIRUVANANTHAPURAM - 695 002.
R1 TO R4 BY SR. GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 26-02-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mn
...2/-
WP(C).No. 5416 of 2014 (B)
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APPENDIX
PETITIONERS' EXHIBITS :
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EXHIBIT-P1- TRUE COPY OF FORM NO. 7 DRIVING LICENCE NO. MH1520080007747
DATED 05/04/1994 ISSUED TO THE PETITIONER FROM MAHARASHTRA
STATE.
EXHIBIT-P1(a)-TRUE COPY OF FORM NO.23 CERTIFICATE OF REGISTRATION FOR
VEHICLE NO.MH18AA1927 DATED 14/02/2012 ISSUED TO THE
PETITIONER BY REGIONAL TRANSPORT OFFICER DHULE.
EXHIBIT-P2- TRUE COPY OF THE EXCISE REPORT PASS NO.FLF/11313/628/6487/
13-14 DATED 12/08/2013 ISSUED FROM NASIK.
EXHIBIT-P2(a)-TRUE COPY OF IP. NO. 131/2013-14 DATED 22/07/2013 FOR TRANSIT OF
LIQUOR THROUGH KERALA STATE ISSUED BY JOINT COMMISSIONER
OF EXCISE, NORTH ZONE, KOZHIKODE TO M/S. UNITED SPIRITS LTD.,
NASIK.
EXHIBIT-P3- TRUE COPY OF LORRY RECEIPT NO. 004214 DATED 13/08/2013 ISSUED
BY THE TRANSPORTING AGENCY WHILE LOADING 550 CASES OF
IMFL INTO THE PETITIONER'S VEHICLE FOR TRANSPORTING FROM
NASIK TO MAHE.
EXHIBIT-P4- TRUE COPY OF TRANSIT PASS NO. 320000/13-14/1213147 DATED
16/08/2013 ISSUED BY THE IST RESPONDENT.
EXHIBIT-P5- TRUE COPY OF UNLOADING PERMIT DATED 21/08/2013 ISSUED
BY DEPUTY COMMISSIONER (EXCISE), MAHE, DECLARING THAT THE
VEHICLE WITH CONSIGNMENT REACHED AT MAHE ON 17/08/2013, AS
PER THE EXCISE VERIFICATION CERTIFICATE OF EXCISE INSPECTOR,
MAHE.
EXHIBIT-P6- TRUE COPY OF LETTER DATED 24/09/2013, SUBMITTED BY
M/S. BALAJI ENTERPRISES (PONDY) PVT. LIMITED, MAHE WHICH WAS
ACKNOWLEDGED BY COMMERCIAL TAX INSPECTOR, COMMERCIAL
TAX CHECK POST, NEW MAHE ON 25/09/2013, FOR SURRENDERING
EXT-P4 TRANS PASS, BEFORE THE 3RD RESPONDENT.
EXHIBIT-P6(a)-TRUE COPY OF LETTER DATED 24/09/2013 ISSUED BY THE EXCISE
INSPECTOR, EXCISE CHECK POST, NEW MAHE TO THE 3RD
RESPONDENT STATING THAT THE GOODS ALONG WITH VEHICLE
PASSED THROUGH NEW MAHE CHECK POST ON 16/08/2013 AT
5.30 P.M TO MAHE.
EXHIBIT-P6(b)-TRUE COPY OF LETTER DATED 25/09/2013 ISSUED BY DEPUTY
COMMISSIONER (EXCISE), MAHE TO THE 3RD RESPONDENT.
(Contd...)
WP(C).No. 5416 of 2014 (B)
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EXHIBIT-P7- TRUE COPY OF LETTER DATED 26/09/2013 ISSUED BY 3RD
RESPONDENT TO M/S. BALAJI ENTERPRISES (PONDY) PVT. LTD.,
MAHE (CONSIGNEE TO THE TRANSIT PASS) AGAINST EXT-P6.
EXHIBIT-P8- TRUE COPY OF NOTICE DATED 17/10/2013 ISSUED BY THE IST
RESPONDENT TO THE PETITIONER, STATING THAT EXT-P4 NOT
SURRENDERED, PROPOSING TO IMPOSE PENALTY OF RS.40,10,673/-
AND FORWARDED THE FILE TO 2ND RESPONDENT.
EXHIBIT-P9- TRUE COPY OF LETTER DATED 18/11/2013 SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT, SURRENDERING EXT-P4
ALONG WITH OTHER RELEVANT DOCUMERNTS TO PROVE TRANSIT
OF GOODS ALONG WITH TRANSPORT VEHICLE TO MAHE.
EXHIBIT-P9(a)-TRUE COPY OF REPLY DATED 12/12/2013 SUBMITTED BY THE
OWNER/CONSIGNOR OF THE GOODS BEFORE THE 2ND
RESPONDENT, ALONG WITH OTHER RELEVANT DOCUMENTS TO
PROVE TRANSIT OF GOODS AND TRANSPORT VEHICLE TO MAHE.
EXHIBIT-P10- TRUE COPY OF COMMON ORDER DATED 26/12/2013 ISSUED TO THE
OWNER OF GOODS (CONSIGNOR) AND TO THE PETITIONER BY THE
2ND RESPONDENT, DEMANDING TAX AND PENALTY.
EXHIBIT-P11- TRUE COPY OF JUDGMENT DATED 17/02/2014 IN W.P(C) 3775 OF 2014
OF THIS HON'BLE COURT, ISSUED TO M/S. UNITED SPIRITS LTD.,
BANGALORE, DIRECTING THE IST RESPONDENT TO RELEASE THE
GOODS AND TRANSPORT VEHICLE FOR THE SUBSEQUENT
TRANSPORT, ON FURNISHING AN UNDERTAKING BY M/S. UNITED
SPIRITS LIMITED.
EXHIBIT-P12- TRUE COPY OF JUDGMENT IN S.T REVISION NO. 77, 81, 138 AND 183
OF 2003 OF THIS HON'BLE COURT REPORTED IN 16 KTR 501,
DECLARING THAT ASSESSMENT ON DRIVER OR VEHICLE OWNER,
ONLY IF THE REAL OWNER CANNOT BE IDENTIFIED.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
Mn
P.R. RAMACHANDRA MENON J.
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W.P.(C) No. 5416 of 2014
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Dated, this the 26th day of February, 2014
JUDGMENT
The petitioner has approached this Court challenging Ext. P8 notice issued under the relevant provisions of the Kerala Value Added Tax and Ext. P10 order, whereby penalty has been imposed under Section 48 (3) of the Act, with reference to Section 30B (3) of the KGST Act, to the tune of Rs.50,13,345/-.
2. The admitted case of the petitioner is that he is the owner- cum-driver of the vehicle bearing No. MH18 AA1927, in which the IMFL of the requisite quantity required by the consignee M/s Balaji Enterprises (Pondy) Pvt. Ltd. was caused to be transported on 17.10.2013. It is stated that the goods were declared at the Excise Check Post, Manjeswar and transit pass was issued. The petitioner however forgot to surrender the transit pass at the Commercial Tax Check post (exist check post) at New Mahe, as a result of which, no entry was made in the KVATIS. The respondent issued Ext. P8 notice on 17.10.2013, when the petitioner attempted to explain the W.P.(C) No. 5416 of 2014 : 2 : facts and figures by submitting Ext. P9 before the first respondent. In the course of further proceedings, Ext. P10 order came to be passed, whereby liability to an extent of Rs. 50,13,345/- came to be mulcted upon the shoulders of the consignee and the petitioner herein. It is stated that the consignee has already approached the appellate authority and pursuant to the judgment passed by this Court in W.P.(C) No. 4982 of 2013, the appellate forrum has granted interim stay and the matter is pending.
3. The learned counsel for the petitioner submits that the notice served to the petitioner itself is in defective form, in so far as same is not under the KGST Act, but under the KVAT Act. It is further pointed out that the non-surrender of transit pass at the Check post was an inadvertent omission, as the check post of the Commercial Tax Authorities was situated very close to the Excise Check Post and it was declared at the Excise Check Post. The Excise department has granted necessary certificate to import the goods as borne by Ext. P5 and accordingly the goods and all the documents including the transit pass were handed over to the consignee. It was thereafter, that the existence of transit pass at the hands of the consignee came to be noticed by the consignee W.P.(C) No. 5416 of 2014 : 3 : by name M/s Balaji Enterprises (Pondy) Pvt. Ltd, who submitted Ext. P6 representation before the 3rd respondent seeking to surrender the transit pass on 24.09.2013. Ext. P7 intimation was given to the said consignee by the 3rd respondent on 26.09.2013 asking to contact the Commercial Tax Officer at Manjeswar Check Post. It is stated that the petitioner has sought to surrender the transit pass accordingly before the said authority, by submitting Ext. P9 representation. It is without any regard to the sequence of events as above, that the proceedings were sought to be finalized, both against the original consignor as well as the petitioner, leading to Ext. P10 order.
4. Heard the learned Government Pleader as well, who submits that the primary liability with regard to non-surrendering of transit pass lies upon the petitioner, who is having control over the vehicle. In the instant case, it cannot be anyone other than the petitioner, he being the owner-cum-driver of the vehicle. It is pointed out that the petitioner has not chosen to challenge Ext. P10 by availing statutory remedy and as such, the detention of the vehicle for non surrendering of transit pass is not liable to be interfered.
W.P.(C) No. 5416 of 2014 : 4 :
3. After hearing both the sides, the petitioner is relegated to approach the competent authority by filing statutory appeal. It is also open for the petitioner to file I.A. for appropriate relief and it will be for the competent authority to have it considered passing appropriate orders in accordance with law, for granting relief to the permissible extent, of course safeguarding the interest of the revenue as well. With the above observations, interference is declined and the writ petition is dismissed.
Sd/-
P. R. RAMACHANDRA MENON, (JUDGE) kmd