C P FATHIMA Vs. STATE OF KERALA

JUDGEMENT

(1.) REVISION petitioner is a registered dealer engaged in the purchase and sale of cashewnuts which is a commodity taxable at the last purchase point under the Kerala General Sales Tax Act, 1963. The revision petitioner/assessee was imposed with the penalty under section 29a (4) of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act") as the officer found that there was an attempt to evade tax due under the Act. The above finding was affirmed by the first appellate authority as well as the Sales Tax Appellate Tribunal. Aggrieved by the above order of the Tribunal the assessee filed this revision petition.

(2.) THE authorities concurrently found the following facts : THE Sub-Inspector of Police, Ulikkal, while returning after trial patrol duty on April 20, 1996 at 00. 30 hours, at Arabi Road, Karyaparambu junction near the Karnataka State border, intercepted, stopped and examined lorry Nos. KL 11/9408 and KL 13/8817 and mini lorry No. KL 13a/3567 and Gobda jeep No. YL 13b/8324. When the vehicles were examined it was confirmed that 250 bags of cashewnuts were in the above four vehicles and no documents prescribed under the Act and Rules were with the vehicles at that time. Subsequently, the goods with the vehicles were taken to the nearest sales tax check-post and the Sales Tax Inspector inspected the above. At the check-post the persons in charge of the goods did not produce any documents like invoices, delivery notes, etc. A notice was served on April 22, 1996. THE power of attorney holder of the assessee produced four sale bills dated April 20, 1996 to show that the above cashewnuts were purchased from Shri N. P. Ummer, hill produce merchant, Ulikkal. He also showed delivery notes Nos : 857577 and 857578 dated April 22, 1996. THE goods were released after executing bank guarantee of rupees one lakh as provided under section 29a (2) of the Act. Section 29a (2) provides as follows : " (2) If such officer has reason to suspect that the goods under transport are not covered by proper and genuine documents (in cases where such documents are necessary) or that any person transporting the goods is attempting to evade payment of the tax due under this Act, he may, for reasons to be recorded in writing, detain the goods and shall allow the same to be transported only on the owner of the goods, or his representative or the driver or other person in-charge of the vehicle or vessel on behalf of the owner of the goods, furnishing security for double the amount of tax likely to be evaded, as may be estimated by such officer

(3.) IT is seriously contended by the petitioner that the petitioner was loading raw cashew-nuts from the customer at the customer's premises at about 9 p. m. on April 20, 1996 and since loading operations wore not completed, the documents were not in the lorries. This contention is rejected by the enquiry authority, appellate authority as well as the Tribunal. The concurrent findings of facts by all the three authorities were that the vehicles were intercepted by the police on April 20, 1996 at 00. 30 hours at a place very near to the border of Kerala and Karnataka States and no required documents were there in the vehicles. IT is not disputed that at the time when the lorries were seized by the police or when B it reached the cheek-post, no documents regarding the goods were there in the vehicles. Under rule 35 (2) of the Kerala General Sales Tax Rules no person shall transport any consignment of goods if the value thereof exceeds twenty-five rupees by any vehicle unless he is in possession of either a bill of a sale or delivery note or way bill or certificate of ownership. Neither sale letter nor delivery note c was there. Delivery note Nos. 857577 and 857578 dated April 22, 1996 were produced before the authorities on April 22, 1996 much after the incident. That itself show that the delivery notes were prepared after the goods were checked and inspected. The finding that the vehicles were intercepted at night by the police while it was running is a finding of fact entered consecutively by three authorities and no material is produced by the petitioner to enter into a different finding in a revision application where question of law has to be considered. The two delivery notes produced were dated April 22, 1996 and were produced on April 22, 1996 for release of the vehicles after executing bank guarantee as can be seen from annexure "a".