Kerala High Court
M/S.Kiran Jewels (India) vs Intelligence Officer
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938
WP(C).No. 32953 of 2016 (T)
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PETITIONER(S):
M/S.KIRAN JEWELS (INDIA),
A/1002, BANDRA-KURLA COMPLEX, BANDRA (EAST),
MUMBAI-400 051, REPRESENTED BY ITS SALES MANAGER,
SRI.HARIS HAMEED.
BY ADV. SRI.TOMSON T.EMMANUEL
RESPONDENT(S):
1. INTELLIGENCE OFFICER
COMMERCIAL TAXES, SQUAD NO.VIII,
SALES TAX COMPLEX, THEVARA, COCHIN-682 015.
2. INTELLIGENCE INSPECTOR
COMMERCIAL TAXES, SQUAD NO.VIII,
SALES TAX COMPLEX, THEVARA, COCHIN-682 015.
3. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
TAXES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
R BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 14-10-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rvs.
WP(C).No. 32953 of 2016 (T)
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT-P1: COPY OF MEMORANDUM/APPROVAL NOTE NO.JAPP/0592
DATED 12.08.2016 FOR 5484.91 GRAMS OF DIFFERENT
MODELS OF DIAMOND STUDDED GOLD JEWELLERY, CARRIED
BY PETITIONER, ALONG WITH PACKING LIST, FOR
EXAMINATION AND INSPECTION.
EXHIBIT-P2: COPY OF MEMORANDUM/APPROVAL NOTE NO.JAPP/0594
DATED 12.08.2016 FOR 2706.27 GRAMS OF DIFFERENT
MODELS OF SILVER STUDDED DIAMOND JEWELLERY,
CARRIED BY PETITIONER, ALONG WITH PACKING LIST,
FOR EXAMINATION AND INSPECTION.
EXHIBIT-P3: COPY OF NOTICE OR NO.430/2016-17 DATED 13.08.2016
ISSUED TO PETITIONER, U/S.47(2) OF KVAT ACT, BY
2ND RESPONDENT, IN DEMANDING SECURITY DEPOSIT,
WHEN PETITIONER WAS IN ARRIVAL TERMINAL OF
CUSTOMS AT COCHIN INTERNATIONAL AIR PORT,
NEDUMBASSERY, ON ARRIVING FROM MUMBAI.
EXHIBIT-P4: COPY OF REPLY DATED 13.08.2016 SUBMITTED WITHIN
24 HOURS TIME, AGAINST EXT P3 NOTICE, AFTER
PERMITTING EXIT FROM COCHIN INTERNATIONAL AIR
PORT ARRIVAL TERMINAL.
EXHIBIT-P4(A): COPY OF FORM NO.16 CERTIFICATE OF OWNERSHIP DATED
13.08.2016, PRODUCED BY PETITIONER ALONG WITH
EXT.P4, BEFORE RESPONDENTS 1 AND 2.
EXHIBIT-P4(B): COPY OF FORM NO.8FA DECLARATION DATED 13.08.2016,
PRODUCED BY PETITIONER ALONG WITH EXT P4, BEFORE
RESPONDENTS 1 AND 2.
EXHIBIT-P5: COPY OF JUDGMENT DATED 18.08.2016 IN WP(C)
NO.27226 OF 2016, PASSED BY THIS HON'BLE COURT,
FOR IMMEDIATE RELEASE OF DETAINED GOLD/SILVER
STUDDED ORNAMENTS.
EXHIBIT-P6: COPY OF NOTICE U/S.67(1) OF THE KVAT ACT ISSUED
TO PETITIONER BY 1ST RESPONDENT, SERVED TO THE
PETITIONER ON 23.08.2016, WHICH IS SUBSEQUENT TO
PASSING OF EXT -P5 JUDGMENT, PROPOSING TO IMPOSE
PENALTY, FOR THE VERY SAME REASON IN EXT P3
NOTICE.
EXHIBIT-P7: COPY OF REPLY DATED 08.09.2016 SUBMITTED THE
PETITIONER BEFORE 1ST RESPONDENT AGAINST EXT P6,
WITH PROOF OF TAKING BACK THE GOLD/SILVER STUDDED
ORNAMENTS IN EXT P1 AND 2 TO MUMBAI, AFTER
EXAMINATION AND INSPECTION BY CUSTOMERS IN
THRISSUR.
WP(C).No. 32953 of 2016 (T)
EXHIBIT-P7(A): COPY OF LETTER DATED 27.08.2016, ALONG WITH FORM
NO.8F DECLARATION SUBMITTED BEFORE COMMERCIAL TAX
AUTHORITIES IN WALAYAR WHILE EXITING THE GOODS
FROM KERALA TO MUMBAI VIA,
COIMBATORE, PRODUCED ALONG WITH EXT.P7 BEFORE 1ST
RESPONDENT.
EXHIBIT-P7(B): COPY OF EXIT PASS NO.1002591 DATED 27.08.2016
ISSUED TO PETITIONER BY COMMERCIAL TAX CHECK
POST, WALAYAR, PRODUCED ALONG WITH EXT P7 BEFORE
1ST RESPONDENT.
EXHIBIT-P8: COPY OF ORDER DATED 19.09.2016 U/S.67(1) OF THE
KVAT ACT, SERVED ON PETITIONER ON 04.10.2016, IN
IMPOSING PENALTY AS PROPOSED IN EXT P6.
RESPONDENT(S)' EXHIBITS:
NIL.
/TRUE COPY/
P.A.TO JUDGE
rvs.
A.M.SHAFFIQUE, J.
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W.P.(C).No.32953 of 2016
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Dated this the 14th day of October, 2016
J U D G M E N T
The petitioner challenges Ext.P8 penalty order issued under Section 67(1) of the KVAT Act, 2003 ('the Act' for short) and the consequent demand arisen therein. According to the petitioner, when proceedings taken under Section 47(2) of the Act is pending consideration, no penalty proceedings could be initiated.
2. Going by the statutory provisions, it cannot be stated that merely for the reason that proceedings under Section 47(2) had been taken, no steps could be taken under Section 67(1) of the KVAT Act. Section 67 can be invoked in different circumstances, when an eventuality as contemplated under Section 67(1) had arisen. Section 47(2) proceedings are taken when transportation is being done without necessary documents as per the KVAT Act and the Rules framed thereunder. Provisions invoked by the authorities under Section 67(1)(a) and (j) reads under :
67. Imposition of penalty by authorities.- (1) Notwithstanding anything contained in section 71 if any authority empowered under this Act is satisfied that any person,-
(a) being a person required to register himself as a dealer under this Act, did not get himself registered; or xxx xxx
(j) has acted in contravention of any of the provisions W.P.(C).No.32953 of 2016 2 of this Act or any rule made thereunder, for the contravention of which no express provision for payment of penalty or for punishment is made by this Act; or
3. Learned counsel for the petitioner relies upon the judgment dated 04.11.2013 in W.P.(C).No.23377 of 2012 (M/s.Baywatch Properties and Developers v. State of Kerala and others). That was a case where the assessment orders under Section 25 of the KVAT Act were under challenge. The contention raised was that when provision under Section 22 of the Act is available for non filing of the return, proceedings under Section 25 cannot be invoked. The learned Single Judge relied upon the Full Bench decision of this Court in State of Kerala v. Shahid [2006 (2) KLT 484] with reference to Section 17 and 19 of the KGST Act and held that on the facts of the case, said judgment applies. It is held that when there is a special provision in regard to non filing of return under Section 22 of the KVAT Act, it was not open for the 2nd respondent to have resorted to general provision under Section 25. On the said facts of the case, impugned orders were set aside. It is apparent from the statutory provision under Section 47 and 67 that there is no comparison to the provisions under Section 25 and 22 of the Act nor under Section 17 and 19 of the KGST Act.
4. The main contention urged by the petitioner is that provision under Section 67(1)(j) cannot be invoked when an identical provision is available under Section 47 of the KVAT Act. As W.P.(C).No.32953 of 2016 3 already indicated, Section 47 of the Act relates to a different situation where goods are transported without sufficient documents.
5. At any rate, it is a question of fact as to whether the notice issued under Section 67 contemplates an action for illegal transportation as well, which can be decided only in a properly constituted revision before the competent authority. I don't think that this Court will be justified in interfering with Ext.P8 order when an equally efficacious remedy by way of revision is available under the statute. All contentions urged by the petitioner can be decided by the revisional authority as well. Hence I don't think it necessary for this Court to interfere with Ext.P8 at this stage of proceedings.
This writ petition is, therefore, dismissed. The petitioner is granted two weeks time to prefer an appropriate revision before the competent authority. Until such time, recovery, if any, shall be kept in abeyance.
Sd/-
A.M.SHAFFIQUE, JUDGE.
AV