Karnataka High Court
M/S.Acqua Alloys Private Ltd. vs The Addl. Commissioner Of Comml. Taxes on 12 September, 2012
Author: N.K. Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12TH DAY OF SEPTEMBER, 2012
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
S.T.A.No. 506/2010 (TAX)
Between:
M/S.Acqua Alloys Private Ltd.
Plot No.122/1 & 2, Shinoli, Chandgad
Dist: Kolhapur, Pin -416508.
Maharastra State ,
Postal Address, Plot No.108,
2nd Main, 6th Cross, Sanmati Building,
Sadashivanagar, Belgaum
Rep. by its MD Sri. S.V. Raghavan,
Age 56 Years.
... Appellant
(By Sri. H.R.Kambiyavar, for
Sri. H.B.V.Patil & Smt. Shalini Patil, Advs.)
And
The Addl. Commissioner of
Commercial Taxes
Zone-1,
Vanijjaya Terege Karayalaya
Building, Gandhingara,
2
Bangalore-09.
... Respondent
(By Smt. K.Vidyavati, Addl. Govt. Adv. )
This STA is filed U/S 66(1)of the Karnataka Value
Added Tax Act, 2003, against the order dated 27/11/2009
passed in ZAC-1/BGM/SMR-36/09-10 on the file of the
Additional Commissioner of Commercial Taxes, Zone-1,
Bangalore and restore the order dtd:11.03.2009 in
JCCT/AP/BG/K.VAT-195 of 2006/B-1502 passed by the
First Appellate Authority.
This STA coming on for Final Hearing this day,
N.K.Patil J., delivered the following
:JUDGMENT:
The appellant, questioning the correctness of the order dated 27.11.2009 passed by the Additional Commissioner of Commercial Taxes, Bangalore, setting aside the order dated 11.3.2009 passed by the Joint Commissioner of Commercial Taxes (Appeals) Belgaum Division, Belgaum-First Appellate Authority which had set aside the penalty levied by Check Post Authority in respect of two vehicles amounting to `50,476/-, vide Annexure-A, has presented this appeal for considering the following substantial questions of law: 3
(i) Whether on facts and circumstances of the case of the Appellant the order passed by First Appellate Authority was prejudicial to the interest of Revenue?
(ii) Whether on facts and circumstances of the case of the appellant the order passed by Revising Authority is justifiable?
(iii) Whether on facts and circumstances of the case of the appellant was there any violation of the provision of the section 53 of the KVAT Act, 2003 which is attracted penalty of `50,476/-?
(iv) Whether on the facts and circumstances of the case of the appellant, the order of the revising authority is justifiable?
2. It is the case of the appellant that, he is a dealer in the State of Maharashtra having its Mailing Office at Belgaum. The appellant has purchased High Chrome Steel Scrap and Manganese Steel Scrap from Larsen & Turbo vide Tax Invoice No.1LBBO:
4587:XFA:00002:142 dated 9.1.2007. The total consideration of the consignment is `.6,30,324/- and this consignment was sent in three different vehicles bearing Nos. KA.25.B.4124, KA.01.B.2261 & KA.239491 4 vide DC No.119114, 119115 & 119116 and the copy of the same were produced before the Check Post Authority at the time of checking. It is the further case of the appellant that two vehicles bearing No.KA.25B.4124 & KA.01B.2261 under transport with DC No.119115 & 119116 was checked at Nelamangala Check Post and the Check Post Authority on the ground that original invoice was not available and indication of value of goods was not forthcoming in the delivery challan and imposed penalty of `50,476/- in respect of above mentioned two vehicles which moved with photo copies of the invoice of the Larsen & Turbo and in fact, the entire consignment moved in three vehicles. In view of the penalty imposed by the Check Post Authority, the appellant has filed an appeal before the First Appellate Authority- Joint Commissioner of Commercial Taxes (Appeals) Belgaum, who in turn, has set aside the order of penalty and directed to refund the penalty vide order dated 11.3.2009 vide Annexure-D1 and the appellant 5 has also produced 'C' form for confirming the entire transaction which proves beyond doubt that the transaction was genuine. It is the further case of the appellant that, the Additional Commissioner of Commercial Taxes, sue-moto issued a notice under section 64 (1) on 22.10.2009 proposing to set aside the order of the First Appellate Authority and to restore the order of Check Post Authority, to which, appellant has filed detailed objections. The Additional Commissioner of Commercial Taxes, Bangalore-Revising Authority has not considered the objections filed by the appellant and proceeded to pass the order holding that the order of First Appellate Authority is prejudiced to the interest of revenue and restored the order of Check Post Authority by its order dated 27.11.2009 vide Annexure-A, which is under challenge in this appeal.
3. We have heard the learned counsel for appellant and learned Additional Government Advocate for respondent.
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4. It is the submission of the learned counsel for the appellant that, the Revising Authority ignored the fact that the appellant is a registered dealer in the State of Maharashtra and also has a office at Belgaum for correspondence purpose and the Unit at Maharashtra is at remote place and there would be delay on communicating and on account of this, both the places has been written in the delivery challans. Further, it is the contention of the appellant that since the consignment is quite huge, the goods have to be moved in three vehicles, one vehicle which has not been checked had carried original tax invoice and other two vehicles carried photo copy of the tax invoice and the finding of the Revising Authority and Check Post Authority that valid documents were not available is not correct. It is also contended that, to confirm the transaction the copy of 'C' Form is produced before the First Appellate Authority which confirms the genuinely of the transaction and on these grounds the appeal was 7 allowed and the Revising Authority has revised the order of First Appellate Authority for the purpose of revision which was not prejudiced the interest of revenue. Therefore, he prayed that the impugned order passed by the Revising Authority and the penalty order passed by the Check Post Authority are liable to be set aside.
5. The undisputed facts of the case is, appellant is a dealer, he has purchased High Chrome Steel Scrap and Manganese Steel Scrap from Larsen & Turbo on 9.1.2007. the said consignment was sent in three different vehicles and two vehicles as referred above have been checked by the Check Post Authority and imposed penalty of `50,476/-, on the ground that original invoice was not available and indication of value of goods was not forthcoming in the delivery challan. Against which, appellant has filed an appeal before the First Appellate Authority, which in turn, without considering the ground reality and the purpose 8 for which the penalty has been imposed and only considering that the penalty order has not been served and no opportunity as such has been afforded to the appellant, has set aside the penalty order and directed to refund the penalty amount collected by the Check Post Authority. The reasoning assigned by the First Appellate Authority for allowing the said appeal is contrary to the material on record. When the appellant has failed to produce the original copy of invoice, the question of considering its case does not arises as there was contravention of law in transporting the goods with delivery challans which shows that there was an intention to evade tax and to dis -entitle the legitimate revenue to the department. The reasoning given for setting aside the penalty order imposed by the Check Post Authority by the First Appellate Authority cannot be sustained and when it came to the knowledge of the Revising Authority, it has justified in invoking its revision power under section 64 of the Act, issued the Notice of Revision under section 64(1) 9 of the Act, and after going through the order passed by the First Appellate Authority and relevant file, taking into consideration the law laid down by the Apex Court and referring the order passed in STA 40/2004 is justified in setting aside the order passed by the First Appellate Authority and restoring the order passed by the Check Post Authority imposing penalty of `50,476/-. The same is just and proper and hence, we do not find any error or illegality as such committed by the Revising Authority in passing the said order. Nor we find any good grounds as such made out by the appellant to interfere in the order passed by the Revising Authority. Therefore, the appeal is dismissed and the questions of law raised in this appeal is answered against the appellant. Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE tsn*