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TMI Blog2009 (12) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods by way of penalty. Appeal is allowed in part - 9 of 2008 - - - Dated:- 4-12-2009 - MANJULA CHELLUR AND NAGARATHNA B.V. , JJ. The judgment of the court was delivered by Mrs. B.V. NAGARATHNA J. This appeal is filed by the dealer challenging the order dated July 7, 2008 by the Additional Commissioner of Commercial Taxes. The relevant facts of the case are that the goods vehicle bearing No. KA07/3614 was intercepted on September 17, 2005 by the Commercial Tax Officer (CTO), Hosur Road Sales Tax Check-post (outward), Attibele, Bangalore, while it was transporting industrial cables of two different varieties under two separate sale bills aggregating to Rs. 1,48,359. The consignments were being carried in the course of inter-State trade in favour of M/s. Eqsun Reyalla Ltd., Plot No. 98, Sipcot Industrial Complex, Hosur and the same were carried by the appellant/consignor. Since the goods vehicle did not stop at the check-post and the documents were not offered for verification before the CTO, the vehicle was chased for a distance of 1.5 km., beyond the check-post and stopped for non-production of documents. The CTO did not verify regarding the validity of the bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(c) of the Act and since the penalty records reveal that the driver had not stopped the vehicle at the check-post, there was contravention of section 53(2)(c) of the Act and penalty under section 53(12) was justified and therefore, the appellate order was prejudicial to the interest of the Revenue. Therefore, the same required to be revised. In reply to the said show-cause notice, the appellant submitted that the vehicle not being stopped by the driver was not intentional, but was technical and therefore, to drop the proceedings. After hearing the appellant herein, the revisional authority set aside the order of the appellate authority dated July 3, 2006 by holding that the penalty under section 53(12) of the Act was justified and therefore, restored the same. It is the said order which is under challenge in this appeal. We have heard the learned counsel for the appellant and the learned Additional Government Advocate for the State. According to the counsel for the appellant, the vehicle could not be stopped at the check-post because of the long queue of the vehicles that there was no intention to evade payment of tax and the driver of the vehicle in question had the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of section 53(2)(c) can be levied if the dealer registered under the Act accepts that he is the consignor or consignee of the goods. In order to ascertain the amount of tax leviable, section 4(1)(a) of the Act has to be considered and according to the counsel for the appellant, in the instant case section 4(1)(a)(2) of the Act read with Third Schedule is applicable in respect of the goods in question and accordingly, tax at the rate of four per cent is leviable and not tax at the rate of 12.5 per cent in terms of section 4(1)(b) of the Act. In the instant case, the revisional authority has noted that it is an admitted fact that the driver of the goods vehicle did not stop at the check-post. It was chased and stopped about one and half kilometres away from the check-post. It is also admitted that the same was a mistake though unintentional, but the consignment was supported by valid sale bill. In view of this admission, the violation under section 53(2)(c) of the Act is established and therefore, the penalty under section 53(12) is attracted. If sufficient cause is not made out, the levy of penalty under section 53(12) is attracted. From a reading of section 53(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it is held that whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances; even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. The apex court was dealing with Orissa Sales Tax Act and in the said case on an honest and genuine belief that the company was not a dealer, the said company was not registered. Under such circumstances, the above observations were made. The said decision has been followed by this court in the case of Ws Tele Systems Ltd. v. Additional Commissioner of Commercial Taxes in Karnataka, Zone-II, Bangalore [1997] 107 STC 568 (disposed of on June 16, 1997 as S.T.A. No. 20 of 1997) wherein it was held that there was a technical violation of law and therefore, the imposition of penalty could not be sustained, as the guilty intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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