K J BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) Heard the Senior Counsel appearing for the revision petitioner and Special Government Pleader for the respondent. The order under challenge is penalty restored by the Tribunal after reversing the order of the first appellate authority cancelling the penalty. The consignment in respect of which penalty is levied in 23 cases of liquor transported in a jeep without being accompanied by invoice. The specific case of the petitioner is that consignment was part of purchase of liquor for above Rs. 5 lakhs from the branch office of the Beverages Corporation, Thodupuzha and the common invoice copy was accompanying the lorry which carried bulk of the purchases. The liquor found in the jeep though not accompanied by invoice contained labels of Beverages Corporation. The Senior Counsel appearing for the petitioner contended that the department has no case that the liquor is illicit because no excise proceedings for seizure or confiscation were initiated. The seizure was on the same date of annexure F invoice produced by the petitioner in this Court. We are unable to accept the theory put forward by the petitioner as such because if truck was carrying the invoice for the whole quantity of liquor purchased, including the quantity under transport in the jeep, then we see no reason why invoice was not produced before the Inspecting Officer, which would have been possible within a reasonable time from the time of seizure. It is also to be noted that the jeep travelled beyond the destination point, which is tried to be explained by the petitioner as on account of mistake on the part of the driver. Even though we agree with the finding of the Tribunal that there was likelihood of evasion of tax, but for the seizure, we still feel the maximum penalty levied and sustained by the Tribunal is not called for because petitioner is entitled to at least the benefit of doubt for the reason that the officer did not have a case that the liquor is illicit and he released it on furnishing security. Since the only legitimate source of liquor in the State is a Government Corporation and since petitioner produced invoice, we reduce the penalty to equal amount of tax as against twice the tax amount sustained by the Tribunal on the ground of benefit of doubt.