SASIKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a revision filed under section 63 of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as "the Act", for short) challenging the orders of the Tribunal confirming penalty levied on the petitioner for alleged evasion of tax for inter-State purchase of steel cylinders used in the packing and sale of medical oxygen. We have heard learned counsel appearing for the appellant and learned Government Pleader for the respondent, and have also gone through the impugned order.

(2.) Section 6(5) of the Act provides for payment of presumptive tax at 0.5 per cent of the turnover if the dealer not being the first seller of goods has an annual turnover of below Rs. 50 lakhs. The petitioner is engaged in the business of purchase and sale of medical oxygen in the State. The petitioner supplies cylinders to medical oxygen producing companies for the companies to fill up the cylinders with oxygen and sell the quantity filled to the petitioner through invoices. Medical oxygen purchased in cylinders is distributed to various customers and the petitioner collects back the cylinders again for refilling. For the purpose of business, the petitioner purchased 150 cylinders from a dealer in Tamil Nadu, and while under transport the goods were detained alleging attempt of evasion of tax because the petitioner transported the goods under cover of form 16 prescribed under rule 58(18) of the Kerala Value Added Tax Rules, 2005 (hereinafter referred to as "the Rules", for short), which provides for transportation of goods by persons other than registered dealers. The goods detained were released on payment of security, and thereafter in the course of adjudication, the Sales Tax Officer (Enquiry) levied penalty under section 47(6) of the Act for attempted evasion of tax for the cylinders purchased by the petitioner from outside Kerala. Appeal filed against the penalty order was unsuccessful before the first appellate authority and also before the Tribunal. It is against the order of the Tribunal confirming penalty, the petitioner has filed this revision case before us.

(3.) Before us learned counsel for the petitioner contended that goods imported are capital goods, which are not for sale, and therefore levy of penalty is unauthorised. The learned Government Pleader, on the other hand, contended that the petitioner answers the description of "importer" defined under section 2(xxii) of the Act. Since a dealer paying presumptive tax is not entitled to import goods from outside the State, penalty for evasion of tax is rightly levied under section 47(6) of the Act is the contention of the learned Government Pleader.