JUDGMENT
K.S. Radhakrishnan, J.
1. Order passed by the Commissioner of Commercial Taxes, Thiruvananthapuram invoking Section 37 of the Kerala General Sales Tax Act, 1963 revising an order passed by the Deputy Commissioner reducing the amount of penalty to Rs. 5,000/- is under challenge in this appeal.
2. Intelligence Officer in exercise of the powers under Section 45A of the Act imposed penalty of Rs. 6 lakhs on M/s. Jas Agencies, Sultan Bathery for the year 1995-96 stating that the assessee had deliberately acted in contravention of the provisions of the Kerala General Sales Tax Act and that he had failed to produce true and complete accounts and hence maximum penalty was imposed. Deputy Commissioner entertained the revision filed by the assessee against the imposition of penalty and reduced the same to Rs. 5,000/-. Commissioner in exercise of the powers under Section 37 of the Act reversed that order and restored the order of the Intelligence Officer.
3. M/s. Jas Agencies, is an assessee borne on the files of the Agricultural Income Tax and Sales Tax Officer, Sulthan Bathery. During the course of investigation conducted by the Intelligence Officer, Kalpetta certain extracts of sales of cement effected by the assessee were collected from the Executive Engineer, Karapuzha Project and on verification of the books of accounts of the assessee along with the extracts it was revealed that 83 sales bills serially numbered from 1 to 83 dated 25-08-1995 to 25-03-1996 were not accounted in the books of accounts of the assessee. Intelligence Officer therefore imposed penalty of Rs. 6 lakhs. Assessee failed to account the sale of 16280 bags of cement valued at Rs. 27,90,260/-. Assessee contended that he is only a second seller in cement and therefore there is no tax liability and there is no question of evasion of tax impose penalty under Section 45A of the Act.
4. Commissioner has examined these contentions elaborately in the impugned order. Commissioner has also noted that the assessee was not able to establish with cogent evidence the details of purchase and whether the transactions suffered tax within the State. Petitioner has not furnished any details in support of the claim of exemption from tax as per the provisions of the Kerala General Sales Tax Act. Further it was also noticed that the Managing Partner of the firm K.K.M. Salim in his sworn statement dated 15-10-1997 to the Intelligence Officer asserted that the assessee had not sold cement to the Executive Engineer during the year under Consideration while as per the records of the Executive Engineer assessee had soled 16280 bags of cement valued at Rs. 27,90,260/- as per 83 sale bills issued by the assessee. The documents kept in the office of the Executive Engineer are public documents kept in the ordinary course of business of Government administration and hence there is nothing illegal in relying on those documents to come to a finding that the assessee had sold the cement to the department.
5. We have no reason to take a different view from that of the Commissioner on facts. The assessee had no case that he had not sold cement to the Executive Officer and cement sold by him was only second sale. The burden is entirely on die assessee to establish the same. As per Section 12 of the Kerala General Sales Tax Act the burden of proving that any transaction of a dealer is not liable to tax under the Act shall be on such dealer. Rule 32(13) of the Kerala General Sales Tax Rules states that every dealer in goods at the point of first sale in the State, shall, if he is not liable to tax on such goods by reason of his not being the first seller of the goods in the state, obtain a certificate written and signed underneath or on the other side of the bill or cash memorandum to the effect that goods covered by the bill or cash memorandum had suffered tax at his (sellers) hands or at the hands of any other dealer mentioned in the certificate. Reference is made to the decision of a Full Bench of this Court in Sreekrishna Trading Co. v. State of Kerala 1995 (2) KLT 255 wherein the court has clearly stated that when the turnover of a dealer who claims to be a second seller originates from unaccounted purchases, he can only be treated as a first seller in so far as the goods involved in such purchases are concerned unless he produces evidence to show that he is not liable to be taxed. We are of the view that the Commissioner has rightly invoked Section 37 of the Act and set aside the order passed by the Deputy Commissioner as erroneous. In such circumstances, we find no error in the order passed by the Commissioner to be interfered with by us in this appeal.
6. Appeal lacks merits and the same is dismissed.