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TMI Blog2009 (9) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... e finding of the Tribunal that an order under section 30B(4) read with sub-section (3) should always be passed with penalty, whatever be the quantum which is a matter of discretion depending on the facts and circumstances to be considered by the adjudicating officer. However, considering the fact that the petitioner fairly conceded the tax liability and since the tax is also paid, we modify the Tribunal’s order by limiting the penalty to an amount equal to the tax levied and confirmed by the Tribunal. - 327 of 2008 - - - Dated:- 10-9-2009 - RAMACHANDRAN C.N. , J. The judgment of the court was delivered by C.N. RAMACHANDRAN NAIR J. The question raised in the revision filed by the assessee is, whether the Tribunal was justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for any penalty and it only provides for levy of tax in respect of the consignment transported. According to the petitioner, the manner of levy as provided in sub-section (3) stated in sub-section (4) of section 30B does not take in penalty and it only adopts the procedure referred to in sub-section (3). The Government Pleader, on the other hand, submits that the manner of assessment and recovery of tax provided in sub-section (3) always includes penalty subject to the upper limit provided therein and by virtue of incorporation of sub-section (3) in sub-section (4), penalty is mandatory and discretion is only with regard to the quantum. In order to decide the controversy, we have to necessarily refer to the relevant subsections of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver person in-charge of the vehicle or vessel shall be jointly or severally liable to pay tax which shall be assessed and recovered in accordance with the relevant provisions of this Act, irrespective of the limit of any turnover together with an amount of penalty not exceeding twice the amount of such tax as may be assessed, after having given to the person or persons aforesaid an opportunity of being heard by the assessing authority under whose jurisdiction the check-post is situate. (4) Where any person consigns any goods or transports any goods from another State into the State and where the particulars furnished in the declaration prescribed in clause (b) of sub-section (2) of section 29 are false or the consignor or purchaser state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. If the transit pass collected from the entry check-post is not surrendered at the exit check-post, there is a presumption of local sale available against the transporter under subsection (2). It is, then, the transporter is proceeded against, for levy of tax and penalty as provided under sub-section (3). What is made clear in subsection (3) is that irrespective of the turnover of the goods transported, which pre-supposes that even if the turnover of goods so transported is below the taxable limit, the value of such goods can be assessed to tax because of the presumption drawn under sub-section (2). It is specifically provided that, the tax should be assessed in accordance with the provisions of the Act with an amount of penalty not exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or driver or such person who was in control of goods. What is further authorised is levy of tax in the manner provided under sub-section (3). As already found by us, sub-section (3) does not provide for levy of tax independently and mandatorily it has to be coupled with penalty, subject to an upper limit of twice the amount of tax. Even though counsel for the petitioner contended that the manner can only mean the procedure , we are of the view that in the context in which it is used in sub-section (4), what is sought to be achieved is to levy tax and penalty in the same way provided in sub-section (3). As already stated, a person covered by sub-section (3) is a transporter, who failed to surrender the transit pass at the exist check- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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