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2011 DIGILAW 662 (KAR)

Vinco Colour and Ceramics v. State of Karnataka

2011-07-01

RAVI MALIMATH, V.G.SABHAHIT

body2011
ORDER V. G. Sabhahit , J.—This petition is filed being aggrieved by the order passed by the Karnataka Appellate Tribunal, Bangalore in STA No. 358 of 2007 dated December 10, 2009, wherein the Tribunal has dismissed the appeal and confirmed the order dated May 8, 2007 passed in VAT. AP. 192/ 06-07 by the Joint Commissioner of Commercial Taxes (Appeals), Bangalore, wherein penalty of two times of duty was imposed for violation of section 53(2) of the Act. The case of the material facts leading up to this petition is as follows : The goods vehicle belonging to the appellant therein was intercepted by the respondent (check-post officer) at 2 a.m. on March 22, 2007 near Kottigepalya Ring Road signal, Bangalore. It was carrying the ceramic vitrified tiles worth Rs.1,12,761 inter-State sale bill and the transaction was against C form at four per cent. The consignee is the appellant located at Sundaranagar, Arashinakunte, Nelamangala Taluk. The goods vehicle was intercepted in a distance around 20 kms. from the place of the consignee. The driver of the goods vehicle stated that the consignee has directed him to take the goods vehicle into Bangalore city and accordingly, he was under movement with the goods vehicle. The vehicle was taken to Kamakashipalya and goods were delivered. Notice was issued under section 53(12) of the Karnataka Value Added Tax Act, 2003 (hereinafter referred to as, "the Act") and penalty at three times the tax of Rs.54,656 was levied. The appellant replied to the notice saying that minimum penalty may be imposed. The Joint Commissioner of Commercial Taxes (Appeals), Bangalore by the order dated May 8, 2007 having found that admittedly there is a violation of section 53(2) and in exercise of power under section 53(12)(a)(ii) imposed penalty of two times of duty leviable. Being aggrieved by the said order, an appeal was filed before the Karnataka Appellate Tribunal and the Appellate Tribunal confirmed the order passed by the appellate authority by observing that admittedly there is a clear violation of the provisions of section 53(2) of the Act attracting penalty under section 53(12) of the Act and imposition of the fine cannot be said to be excessive as lenient view has been taken by the appellate authority and accordingly, dismissed the appeal by an order dated December 10, 2009. 2. 2. Being aggrieved by the said order, revision petition is filed contending that the violation was not intentional and the goods vehicle reached Bangalore in the midnight and wherefore, penalty may be reduced. He has referred to the provisions of section 53(12) (a) (i) and submitted that penalty cannot exceed one and half times duty payable. 3. The Learned Counsel appearing for the petitioner places his reliance on the judgment of Aishwarya Consolidates (P) Ltd. rep. by Sri K. Srinivasan, Director Vs. The Addl. Commissioner of Commercial Taxes, Zone-I, ILR (2009) KAR 3052 , wherein it has been held that levy of penalty is justifiable only if cause shown for non-production of document is found to be not sufficient--where document produced subsequently, i.e., next day, was accepted and no finding recorded as to whether cause shown for non-production of document was sufficient or not and therefore, levy of penalty is not sustainable in law. 4. The learned Government Advocate submitted that admittedly there is a violation of section 53(12) and minimum penalty of two times of the duty is levied by invoking the provisions of section 53(12)(a)(ii). 5. We have given our careful consideration to the contentions urged by the Learned Counsel appearing for the petitioner and the learned Government Advocate and scrutinized the material on record. 6. The material on record would clearly shows that admittedly the petitioner has violated the provisions of section 53(12) as the vehicle was not stopped at the check-post and he had travelled 20 kms. thereafter and only after interception, the driver given the explanation that he was taking the goods to the Bangalore city at the instructions of the consignee. Admittedly, the vehicle was not stopped at the check-post and no documents were produced and wherefore, the case of the petitioner in view of the abovesaid admitted fact, the penalty to be imposed would fall within the provisions of section 53(12)(a)(ii) and wherein, it is stated that the amount of penalty imposed shall not exceed three times the amount of tax leviable in respect of the goods under transport. Hence, penalty of two times of duty leviable is imposed in this case and wherefore, the appellate authority and the Appellate Tribunal has taken a lenient view and imposed penalty of two times of duty leviable. Hence, penalty of two times of duty leviable is imposed in this case and wherefore, the appellate authority and the Appellate Tribunal has taken a lenient view and imposed penalty of two times of duty leviable. In view of the abovesaid admitted fact, the decision relied upon by the Learned Counsel appearing for the petitioner is not applicable to the present case. Accordingly, we do not find any ground to interfere with the order passed by the Tribunal. Accordingly, revision is dismissed as being devoid of merits.