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TMI Blog1996 (3) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... title to the ultimate buyers. In terms of the purchase order, M/s. Cumine Diesel Sales and Services (India) Ltd., Pune, despatched the engine through Kerala Transport Company under cover of delivery note, and a certificate attached thereto showing the full value of consignment at Rs. 3,38,160.15. 3.. While the goods were moving to the destination, that is, to Pasuparai in Idukki district, when the vehicle No. TCC 8986 carrying the said goods reached the sales tax check-post, Perumannoor on April 24, 1989, the Sales Tax Inspector attached to the said check-post after verification of the records accompanying the transport detained the goods and issued a notice under section 29A(2) of the Kerala General Sales Tax Act, 1963, stating that the document-delivery Note No. ES 04290 dated April 19, 1989-accompanying the transport is not the one as prescribed under the Act and the Rules and that the delivery note did not show the value of the goods consigned. As a condition for release of the goods, the Sales Tax Inspector demanded a sum of Rs. 1,01,700 by way of cash security. It is seen from the proceedings of the Sales Tax Officer (Enquiry) that the Sales Tax Inspector collected a secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 6(2) of the Central Sales Tax Act and at the time of interception of the consignment there was no title of goods available for verification. It is also stated that the assessee has not established the case of second inter-State sale by producing the bill raised by the appellant in favour of the transferee or the original sale bill endorsed in favour of the transferee. The Tribunal further observed that in the present case, all the documents relied on by the appellant have been procured/produced subsequently. The Tribunal thereafter adopted the reasoning of the enquiry officer and sustained the order imposing penalty. 6.. As already stated, T.R.C. No. 149 of 1993 arises in connection with the assessment of the assessee under the Kerala General Sales Tax Act, 1963, for the year 1989-90. The assessment for the year in question was originally completed under the said Act for the year 1989-90 granting exemption in respect of the turnover of sale in transit effected by the assessee, which included a sum of Rs. 3,39,367 representing transaction which is the subject-matter of the penalty proceedings. This was based on the assessment order for 1989-90 passed under the Central Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Tribunal had considered any of the documents produced by the assessee to test the correctness of the claim made by the assessee. Even the enquiry officer before whom the documents were produced did not consider the same. 11.. The counsel for the assessee filed a verified petition, C.M.P. No. 3348 of 1994 in T.R.C. No. 145 of 1993 and produced all the documents including the delivery note produced before the enquiry officer. On a mere perusal of the delivery note accompanying the transport, the nature of the transaction is discernible. The delivery note clearly showed the consignor and the consignee. The consignor is Cumine Diesel Sales and Services (India) Ltd., Pune and the consignee's address is shown as the Estate Manager, Highland Produce Company, Pasuparai Estate, Pasuparai. The assessee's address is also shown in the delivery note as the indentor. The delivery note further showed the purchase order placed by the consignee. Though the delivery note did not show the value of the engine, the certificate attached to the said delivery note clearly showed the value of the consignment. In other words, the delivery note and the certificate attached thereto clearly showed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the transaction in question is an interState and/or a sale in transit. 14.. In order to attract the provisions of section 29A of the Act, it is necessary for the assessing authority to establish that there is an attempt at evasion of tax on the part of the assessee. In the instant case, if the transaction is an inter-State transaction or a sale in transit, as contended by the assessee, there is no question of any tax being exigible under the provisions of the Kerala General Sales Tax Act. We have already found that the transaction in question is an interState transaction and/or a sale in transit. As such, there is no question of any tax being exigible under the provisions of the Kerala General Sales Tax Act. A fortiori it follows that the provisions of section 29A of the Act are not attracted in the instant case. 15.. We are supported in the above view by the decision of a learned single Judge of this Court in McDowell Co. Ltd. v. Sales Tax Officer (Enquiry) [1993] 91 STC 610; (1993) 2 KLT 265 in which it is observed that under section 29A(4) of the Act, a penalty can be imposed only if there was an attempt to evade the tax due under the Act. It is also observed in that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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