SATHYAN GOLD Vs. THE STATE OF KERALA

JUDGEMENT

(1.) READ order dated 12.6.2012 in W.P. (C). 8223/12. Obviously, even at that stage, we did not find any ground to interfere with the impugned order. Be that as it may, we have granted time to the petitioner to pay off the penalty amount which remained unpaid. Today, learned counsel for the petitioner has shown us the photostats of covering letters and cheques with endorsement on behalf of the department for payment of the balance amount. We do not find any substantial question of law for interference with the order impugned in the writ petition. We say this because the writ petition has been filed against the order of the 1st appellate authority on the strength of Ext.P8 order passed by another Bench of this Court. The penalty order is confirmed. Having regard to the payment of penalty, we consider the order impugned in the revision. The lower authorities have ordered the confiscation under section 47(16) of the KVAT Act on the premise that the ownership of the gold seized is not proved. Section 47(16) contemplates confiscation in the case of transport of goods in the name of bogus or unidentifiable persons. In this case, the assessee has claimed the same and has also been levied with penalty for the offence of the unauthorised transport.

(2.) THERE is no provision for confiscation of goods on mere commission of an offence. Confiscation is to ensure that the State is compensated for the loss occurred on tax evasion, in the event of there being no assessee/dealer/identifiable person against whom proceedings can be taken for assessment/penalty. Transport of goods in violation of the provisions of the Act does not lead to an offence entailing confiscation of goods. A reading of section 47 would make it clear that on detention of goods based on suspected evasion or attempted evasion of tax; release of goods also is contemplated on providing security at twice the amount of tax so sought to be evaded. This is so to ensure realization of penalty; the maximum amount of which is twice the amount of tax. The penalty imposed as modified by the first appellate authority has also been satisfied. The revision is hence allowed vacating the confiscation order. Gold ornaments to be released to the petitioner. This will be done on production of a copy of this judgment before the authority concerned. The above judgment is passed on the peculiar facts and circumstances of this case. Writ petition and O.T. revision ordered accordingly.