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Judgment
Justice P.R. Ramachandra Menon
The petitioner imported some timber, by name, ''Pincoda'' at the Mangalore port and the same was being taken in the lorry bearing Reg.No.KL 11AA 5527 to the destination at Feroke. According to the petitioner, in the course of transit, sale was effected and accordingly, the goods were being taken to be supplied to the concerned purchaser on the strength of Ext.P3 invoice dated 27/01/2011. It was in the course of transit as above, that the vehicle was intercepted by the concerned respondent on 28/01/2011 issuing Ext.P4 notice u/s 47(2) of KVAT Act, doubting evasion of tax and demanding security to the extent as specified therein. It is conceded that, the goods were got released pursuant to the interim order dated 4/12/2011 passed by this Court in W.P.(C) No.3341/2011 and thereafter the said writ petition was disposed of, as per Ext.P5 verdict dated 11/02/2011, directing the concerned authority to finalise the adjudication proceedings in accordance with law, within the time as specified therein. Pursuant to Ext.P5 judgment, the matter was considered by the competent authority, who passed Ext.P6 order dated 30/01/2011, whereby a finding was rendered as to the attempt to evade tax since the goods were not accompanied by proper ''delivery note'' and accordingly, penalty to the extent of Rs. 84,140/- was imposed u/s 47(6) of the KVAT Act, which in turn is under challenge in this writ petition.
The respondents have filed a detailed statement as to the actual facts and figures, seeking to sustain Ext.P6. The insinuation made by issuing Ext.P4 is on the following grounds:
The vehicle with the goods intercepted at Thalassery while unloading at the premises of the consignee M/s. Quality Timbers, Thalassery. On verification of the document the consignment is seen from Calicut to Thalssery. The goods under transport is timber. Since it is a notified item the departmental delivery note in Form No. 15 shall be accompanied for the transaction of the same from dealer to dealer. But the same is not seen with the consignment. The accompanied document in this case is only as invoice No. 124 dated 27/1/2011.
The goods under transport has not been delivered in any of the enroute check post at Kunhipally at New Mahe. It is suspected that the consigner and consignee have collided each other to evade payment of tax due on this consignment.
The contention raised in the writ petition is that, the absence of any seal of the enroute check post is mainly because of the fact that the goods were subjected to sale in the course of transit, as a result of which, the goods and vehicle had not actually reached the destination at Feroke. It was in the middle of the route, that the goods were sought to be supplied to the purchaser, on the strength of Ext.P3 invoice. With the regard to the absence of delivery note, there is no case for the petitioner that the transportation was supported by proper delivery note. Learned counsel for the petitioner further submits that, this however is a matter which can be looked into by the concerned authority, with regard to the penalty to be imposed under some other provision of law and not with reference to Section 47(6).
This Court does not find any merit in the said proposition. This is mainly for the fact that, the scope of Section 47(2) is with regard to the ''attempt to evade tax''. It is not with respect to, whether the petitioner has actually evaded tax or not. The reliance sought to be placed by the learned counsel for the petitioner on the observation made by the concerned authority in Ext.P6 that, on verification of the books of accounts, sale has already been accounted and as such there cannot be any penalty as per Ext.P6 is quite wrong and misconceived. As a matter of fact, the question to be considered is whether there was any attempt to evade tax. By virtue of the statutory mandate u/s 46(3), various documents are to be accompanied, so as to make it a valid transport. In the instant case, the goods being a notified item, it had to be supported by valid ''delivery note''; the absence of which can give rise to a situation for the concerned authority to doubt evasion of tax. The ''attempt'' has been satisfactorily established by the concerned authority, while passing Ext.P6 order. This being the position, the penalty imposed u/s 47(6) stands justified.
No interference is warranted in this writ petition and the same is dismissed accordingly.