GREENPLY INDUSTRIES LIMITED Vs. COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) The assessee has preferred this appeal challenging the order passed by the Additional Commissioner of Commercial Taxes, Zone 1, Bangalore, who has exercised its revisional jurisdiction under section 64(1) of the Karnataka Value Added Tax Act, 2003 (for short, hereinafter referred to as, "the Act") in setting aside the order of the Appellate Commissioner and restoring the original order. The assessee is a private limited company having a manufacturing unit at Nagaland. Its branch offices are at Bangalore and other places in the State. It is in the manufacture of plywood. It is carrying on business for over 15 years. The assessee secured goods by way of stock transfer from its manufacturing unit to its branches. On November 8, 2008, plywood worth Rs. 11,00,846 was earned in goods vehicle bearing No. AP 16 IV 6655 from Assam, Nagaland to the consignee, Bangalore branch of the assessee. It was intercepted at Urvesi Theatre, Lalbagh Road at 5 a.m. The driver of the vehicle handed over eight documents which are clearly set out in the Mahazar drawn at the time of interception. On the ground that the said documents did not satisfy the requirement of section 53(2) of the Act, notice came to be issued proposing to levy a sum of Rs. 3,27,205.10 as penalty for contravention of provisions of section 53(2) of the Act. The assessee gave his reply. Not being satisfied with the said reply, the check-post officer imposed penalty of Rs. 2,18,150. Aggrieved by the said order, he preferred an appeal to the joint Commissioner of Commercial Taxes (Appeals), who allowed the appeal and set aside the order of the check-post officer.

(2.) Consequent to that, the Department was bound to refund the penalty of Rs. 2,18,150 which the assessee has paid. It was not paid. Therefore, the assessee got issued legal notices dated April 24, 2009 and May 27, 2009 calling upon the first respondent-Commissioner to refund the same. But the amount was not refunded. He was constrained to file a Writ Petition in W. P. No. 19066 of 2009 which came to be allowed on July 9, 2009 (Greenply Industries Ltd. v. Commissioner of Commercial Taxes, 2011 37 VST 536, after hearing both the parties and directing the second respondent-Joint Commissioner of Commercial Taxes to refund the amount within a week from the date of the order or initiate such action as is permissible, in accordance with law over the said order. Costs was quantified at Rs. 5,000 payable by the Department and to be recovered from the salary of the first respondent, i.e., Commissioner of Commercial Taxes. All the three respondents in the said writ petition preferred an appeal challenging that portion of the order imposing cost and making the first respondent, the Commissioner, liable to pay said amount in Writ Appeal No. 3426 of 2009. After hearing the parties, the writ appeal came to be dismissed confirming the order. Thereafter the Commissioner of Commercial Taxes in his individual capacity filed writ appeal before this court in W. A. No. 5195 of 2009 which also came to be dismissed by this court on February 11, 2010 (B. A. Harish Gowda, Commissioner of Public Instruction, Dept. of Education v. Greenply Industries Ltd., 2011 37 VST 539. In terms of the order passed by the learned single judge the penalty paid was refunded with interest and cost. It is thereafter the present proceedings is initiated suo motu by virtue of the power conferred on the Additional Commissioner of Commercial Taxes under section 64(1) of the Act.

(3.) The Mahazar drawn by the check-post officer showing the production of documents by the driver of the lorry shows the following documents were produced: