KAMALESH TANNA Vs. STATE OF KERALA

JUDGEMENT

(1.) K. SREEDHARAN, J Petitioners are dealers in hill produce. They are registered dealers on the files of the Assistant Commissioner (Assessment ). Special Circle (Produce), Mattancherry. They purchased 10,000 empty gunny bags for Rs. 1,06,000 from Hoogly Mills Projects Ltd. , Clive Street, Calcutta. The goods were despatched from Calcutta to Kochi by lorry operated by M/s. Chanda Road Carrier. When the vehicle reached the check-post at Perumanoor, the Inspector-in-charge detained the lorry for the reason that the invoice covering the transport is only a pro forma invoice not serially numbered. Inspector issued a notice under section 29a (2) demanding security of Rs. 21,200. On furnishing the security the lorry and the goods were released. Records were thereafter transmitted to the Sales Tax Officer (Enquiry) for further action. That officer after proper enquiry imposed a penalty of Rs. 21,200 and adjusted and security towards the penalty. Petitioners filed appeal against that order before the appellate authority. Appeal was dismissed on the ground that at the time of checking the goods documents prescribed under section 29 were not available with the driver of the vehicle. Second appeal was preferred to the Sales Tax Appellate Tribunal. The Tribunal affirmed the order of the lower authorities. Hence this revision petition under section 41 of the Kerala General Sales Tax Act.

(2.) 10,000 gunny bags transported in lorry No. TDV 7467 were detained by the Sales Tax Check-post Inspector, Perumanoor, on May 8, 1989 for want of prescribed documents for the transportation of those goods. The transport was accompanied by a pro forma invoice dated April 28, 1989 in which the value of the goods transported was recorded as Rs. 1,06,000. That pro forma invoice was not numbered. The contention raised before the Sales Tax Inspector (Enquiry) was that the goods transported was accompanied by lorry receipt, delivery note and form 27-B declaration. But in the argument note submitted before the Tribunal, it was stated that in addition to the above documents Central Excise Gate Pass in G. P. 1 was also with the driver. On scrutiny of the records, the Tribunal found that the above contentions before the Sales Tax Officer, Sales Tax Check-post Inspector, Sales Tax Officer (Enquiry) and before the Tribunal were not the same and that they differed. According to the Tribunal, it was very unpleasant to note that the appellant's counsel raised new contentions before different authorities. On scrutiny of the records, the only document which accompanied the transport was one pro forma invoice dated April 28, 1989. No other document accompanied the goods. Delivery note, form 27 declaration, copy of the original bill were not in the possession of the driver as was contended by counsel representing the petitioners. It is further pertinent to note that gate pass which accompanied the transport also shows a different lorry number, namely, lorry bearing registration No. OSU 3905. But the vehicle which was actually transporting the goods was having registration No. TDV 7467. As per section 29a (2), if the goods transported are not covered by proper and genuine documents, penalty can be imposed. Officer in-charge of the notified area can detain the goods and can release the goods after realising security for double the amount of tax likely to be evaded.