Dismissed

M.H.Nasir v. the Commissioner of Commercial Taxes

Kerala HC15 Feb 2013WP(C)/560/2013

Case brief

AI extract

What is this about?

Petitioner challenged penalty leviced under Section 47(6) of the KVAT Act, arguing double penalty was barred by Section 47(7). Court noted substantial variation in valuation and failure to declare goods at check posts, finding case not fit for interference but directed statutory appeal consideration.

What did the court decide?

Writ petition dismissed; petitioner directed to file statutory appeal within three weeks to be entertained ignoring delay.

M.H.Nasir Vs the Commissioner of Commercial Taxes — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934

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WP(C).No. 560 of 2013 (T)

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PETITIONER(S):

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M.H.NASIR, "RASINAS", 71 AARJI VILLAGE, PERUMBADI, VEERAJ PETTA, KARNATAKA, PIN - 571 218.

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BY ADVS.SRI.T.G.MADHAVANUNNI

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SRI.C.S.ARUN SHANKAR SMT.REVATHY P.NAIR

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RESPONDENT(S):

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1. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM, PIN - 695 033.

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2. THE INTELLIGENCE INSPECTOR, SQUAD NO.VI, O/O.INSPECTING ASST.COMMISSIONER (IB), COMMERCIAL TAXES, KOZHIKODE, PIN - 673 006.

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3. THE INTELLIGENCE OFFICER (RAPID ACTION), COMMERCIAL TAXES, KOZHIKODE, PIN - 673 006.

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R1 TO R3 BY SR.GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.560/2013 T

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1. TRUE COPY OF FOREST PASS NO.041872 DATED 20.11.2011 ISSUED BY KARNATAKA FOREST DEPARTMENT.

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EXHIBIT P2. TRUE COPY OF THE RECEIPT NO.TXTB 49733 DATED 20.11.2011 FOR PAYMENT OF SECURITY DEPOSIT AT COMMERCIAL TAX CHECK POST, KOOTUPUZHA.

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EXHIBIT P3. TRUE COPY OF FORM 17A DETENTION NOTICE NO.VCR/VI/621/2011-12 DATED 21.11.2011 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P4. TRUE COPY OF THE REPLY DATED 21.11.2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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EXHIBIT P5. TRUE COPY OF RECEIPT NO.R1 163190 DATED 21.11.2011 FOR PAYMENT OF SECURITY DEPOSIT BEFORE THE 2ND RESPONDENT.

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EXHIBIT P6. TRUE COPY OF NOTICE NO.VCR/621/VI/11-12 DATED 23.01.2012 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P7. TRUE COPY OF THE PENALTY ORDER NO.VCR.621/VI/11-12 DATED 15.02.2012 PASSED BY THE 3RD RESPONDENT.

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RESPONDENTS' ANNEXURE:

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ANNEX.R3(A): COPY OF THE ROUTE MAP.

/TRUE COPY/

P.A.TO JUDGE

Kss

ANTONY DOMINIC, J

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W.P.(C).560/2013

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.............................................. Dated this the 15^th day of February, 2013

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JUDGMENT

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1.Petitioner challenges Ext.P7. By Ext.P7, penalty under Section 47(6) of the KVAT Act of Rs.1,34,330/- was levied on the petitioner.

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2.According to the petitioner, they procured a quantity of 20 tones of Ball tamarind from Virajpet. Case of the petitioner is that a consignment of Ball tamarind was transported by them from Virajpet to Kottayam, in a Truck bearing registration No.KL-58382. Ext.P1 is the forest pass issued by the Karnataka Forest Department. It is stated that on entry of the Truck with the goods into the State, the vehicle was detained at the Kootupuzha check post and estimating the value of the consignment, penalty of Rs.11,100/- was levied. Petitioner remitted penalty by Ext.P2.

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3.Subsequently, when the Truck reached Feroke, it was again detained and Ext.P3 is the notice issued under Section 47(2) of

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W.P.(C).560/13

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the KVAT Act. To the irregularities mentioned in Ext.P3, petitioner filed Ext.P4 reply. Thereupon, petitioner remitted the security demanded, the receipt of which is Ext.P5. Adjudication was conducted and finally penalty was once again levied by Ext.P7. It is challenging Ext.P7 the writ petition is filed.

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The contention raised by the counsel for the petitioner is that the goods having already suffered penalty by Ext.P2, cannot be subjected to proceedings under Section 47(2) once again. This according to the petitioner, is prohibited in view of Section 47 (7) of the KVAT Act.

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5.On the other hand, learned Government Pleader referred me to Ext.P7 and contended that there was an increase in the quantity when consignment was again detained by Ext.P3. It is also stated that the goods reached Feroke without the petitioner declaring the goods at the two check posts, New Mahe and Kunhipally, and that even in Ext.P7, the value already estimated in Ext.P2 has been given credit and therefore, according to her, this is not a case where the goods again

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W.P.(C).560/13

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suffered penalty which alone is prohibited under Section 47(7) of the KVAT Act.

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It is true that Section 47(7) of the KVAT Act prohibits levy of penalty once again on goods which have already suffered penalty. Insofar as this case is concerned, what is relied on by the petitioner is Ext.P1, the Forest pass to contend that what was transported from Virajpet was 20 Tones and that therefore, there was no change in the quantity transported. However, neither in Ext.P2 nor in Ext.P1, is there any mention that the consignment was accompanied by Ext.P1 forest pass. In the reply filed by the petitioner also there is no reference to this document. That apart, goods have reached Feroke without declaring the same at two check posts enroute. Admittedly, the value estimated was at Rs.1,37,500/- and Rs.11,100/- was levied as penalty. The value now estimated is Rs.18 Lakhs. This substantial variation in the value and also the suspicious circumstances that were pointed out, create credibility of the case of the respondents and therefore, I am of the view that this may not be a case which is fit for interference in a

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W.P.(C).560/13

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proceedings under Article 226 of the Constitution of India. In such circumstances, I decline to interfere with Ext.P7.

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7.However, it is directed that if the petitioner files statutory appeal within three weeks from today, that will be entertained by the appellate authority ignoring the delay and orders thereon will be passed on merits.

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With the above direction, this writ petition is dismissed.

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Sd/- ANTONY DOMINIC, JUDGE

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mrcs

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/true copy/

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sd/- P.A. To Judge

M.H.Nasir v. the Commissioner of Commercial Taxes

Case brief

What is this about?

What did the court decide?

M.H.Nasir v. the Commissioner of Commercial Taxes

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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