IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29462 of 2003(G)
1. M/S. M.K.V.K.SAW MILLS,
... Petitioner
Vs
1. THE SALES TAX OFFICER, KASARAGOD.
... Respondent
2. THE DEPUTY COMMISSIONER, COMMERCIAL
3. THE COMMISSIONER OF COMMERCIAL TAXES,
For Petitioner :SRI.C.KOCHUNNY NAIR
For Respondent :SMT.T.RADHAMANY
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
Dated :29/02/2008
O R D E R
C.N. RAMACHANDRAN NAIR, J.
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W.P.C. NO. 29462 OF 2003
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Dated this the 29th day of February, 2008
JUDGMENT
Petitioner is challenging Ext.P6 whereunder the Commissioner of
Commercial Taxes, confirmed the demand of tax and penalty under
Section 30B(3) and (4) of the KGST Act. Petitioner transported timber
from Mangalore to Mahe through the border checkpost B. Manjeshwar
in Kerala. Under the KGST Act and Rules, petitioner has to collect
transit pass in Form No. 27C from the border checkpost and surrender
it at the exit checkpost. In this case, petitioner though collected Form
No. 27C from the border checkpost B. Manjeshwar for transport of
timber through Kerala to Mahe through the exit checkpost at New
Mahe, petitioner did not surrender form No.27C which is the proof for
entry into Mahe. Consequently the Department presumed sale in
Kerala in terms of Section 30B(2) and proposed fine under sub-sections
(3) and (4) of Section 30B. While the consignor, namely, the petitioner
even after receipt of notice did not file any reply,the consignee, driver
and owner of the vehicle, did not even respond to notices. Therefore
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tax and penalty were levied under Section 30B (3) and (4) of the Act.
In the revision, the first revisional authority though confirmed in
principle the demand of tax and penalty, reduced the penalty to equal
amount of tax. In second revision, the Commissioner confirmed the
same vide Ext.P6 order against which this W.P. is filed.
2. The contention raised by the petitioner is that substantial
portion of the goods were sold in Mangalore itself and for the balance
quantity petitioner obtained C forms from Mahe. This argument is
unacceptable because if sales were made in Mangalore which is in
Karnataka State, there is no need for the petitioner to collect any Form
No. 27C at border checkpost in Kerala and if any such form No. 27C is
collected, then it is only for transport of goods in transit and the form
itself is issued only when the goods arrive at the checkpost. Therefore
this argument after collecting Form No.27C from the border checkpost
is absolutely false and bogus. So far as the case of the petitioner that C
forms were issued by the Purchaser at Mahe, this argument is not
acceptable because such C forms issued by the Purchaser from Mahe
cannot negative the presumption of local sale in Kerala in terms of
Section 30B(2) of the Act. The accounting of the goods by the
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purchaser at Mahe to help the petitioner is not going to save the
petitioner from tax and penalty which is provided under Section 30B
(2) and (3) of the Act on failure to surrender Form No. 27C at the exit
checkpost. It is to be noted that petitioner has not offered any
explanation as to why Form No. 27C was not surrendered at the exit
checkpost if the petitioner has in fact transported the goods to Mahe as
claimed by it. Therefore this contention is only to be rejected and I do
so. Petitioner has contended that the Commissioner is wrong in
sustaining the order under Section 30B(4) which according to the
petitioner has no application. Of course I find that Section 30B(4) is
relied on by the Commissioner only because consignee and the
transporter were not traceable and consequently he treated the transport
as made to bogus persons. I do not think reliance by Commissioner on
Section 30B(4) will affect the validity of the order otherwise
sustainable under Section 30B (2) and (3) of the Act.
W.P. therefore fails and is dismissed.
(C.N. RAMACHANDRAN NAIR)
Judge
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