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2019 (2) TMI 840 - HC - VAT and Sales TaxLevy of sales tax - inter-state transfer or not? - discretionary jurisdiction under Article 226 of the Constitution - Held that - Admittedly the goods were transported to be sold within the State of Kerala. The goods were also released to the transporter and since the same has not been taken back outside the State through the check post, there is a presumption that it has been sold within the State of Kerala. The release having been effected by the transporter, necessarily the transporter is liable to sales tax, leviable within the State of Kerala - appeal dismissed.
Issues:
1. Delay in filing the appeal against the judgment of the learned Single Judge. 2. Refusal to exercise discretionary jurisdiction under Article 226 of the Constitution. 3. Liability of the transporter under the Kerala Value Added Tax Act, 2003. Issue 1: Delay in filing the appeal against the judgment of the learned Single Judge The appeal was filed with a delay of 267 days against the judgment of the learned Single Judge. The impugned judgment highlighted the availability of an alternate remedy, leading to the learned Single Judge's refusal to exercise discretionary jurisdiction under Article 226 of the Constitution. The High Court, while considering the appeal, emphasized the need to assess whether the refusal to exercise discretion by the learned Single Judge was reasonable. The Court clarified that it would not impose its own views on reasonableness but rather evaluate the reasonableness of the learned Single Judge's decision. Issue 2: Refusal to exercise discretionary jurisdiction under Article 226 of the Constitution The impugned order in the writ petition was appealable, as evident from Exhibit P4 dated 14.09.2017. Despite this, no appeal was initiated within the stipulated time frame. The learned Single Judge, while denying interference under Article 226, directed a deferment of the demand mentioned in Exhibit P4 for four weeks to facilitate a properly instituted appeal. However, the appellant failed to initiate such an appeal within the specified period. The High Court, after condoning the delay, opined that the appellant lacked a valid case on merits. The Court emphasized the importance of following procedural requirements and timely filing of appeals to seek appropriate remedies. Issue 3: Liability of the transporter under the Kerala Value Added Tax Act, 2003 The appellant, a transporter involved in inter-State goods transportation, faced detention of eleven consignments at a check post under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act) due to inadequate documentation. Subsequently, the appellant authorized an individual to pay the penalty and retrieve the goods. The assessment was completed on TCI Freight, Aluva, the transporter who authorized the release of goods. The appellant contended that being a transporter, they should not be liable for assessment as the consignee was available for assessment. However, the Court noted the absence of evidence regarding the consignee's status as a registered dealer in Kerala. The Court rejected the appellant's claim that the consignee was Fateh Mohammed, as the latter was authorized to release goods on behalf of the transporter and was identified as an employee of TCI Freight. Since the goods were intended for sale within Kerala and were not taken out of the state post-release, the transporter was deemed liable for sales tax within Kerala. The Court upheld the judgment of the learned Single Judge, dismissing the appeal and directing each party to bear their respective costs. This detailed analysis of the judgment from the Kerala High Court covers the issues of delay in filing the appeal, refusal to exercise discretionary jurisdiction under Article 226 of the Constitution, and the liability of the transporter under the Kerala Value Added Tax Act, 2003.
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