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TMI Blog2014 (5) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and it has to be gazette - In the instant case, the notification dated 21-3-2009 is not gazette - Hence it cannot be treated as mandatory - The revisional authority without considering the objections raised by the appellant, only under the impression that there is revenue loss to the State Government had set aside the order passed by the Appellate Authority which is contrary to law. The appellant has not violated any of the provisions of KVAT Act - The goods has been transported from one project area to another situated out side the State and the same is not for sale - Hence, the question of payment of tax does not arise - Imposition of the penalty under Section 53(12) of the KVAT Act is contrary to the provisions of the Act - Hence, the order passed by the revisional authority cannot be sustained - The appeal is allowed. The order dated 15-9-2009 by the Addl. Commissioner of Commercial Taxes u/s 64(1) of the KVAT Act is set aside - The order passed by the First Appellate Authority is restored – Decided in favour of assessee. - STA No. 77/2010 - - - Dated:- 11-10-2013 - Dilip B Bhosale And B Manohar, JJ. For the Appellant : Sri. M Thirumalesh, Adv. For the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner, Commercial Tax and thereby violated Section 157(2) of the Act. The person in-charge of the goods explained the circumstances under which, old Form VAT 505 were used. However, the Check-Post authorities did not accept the said delivery notes on the ground that they are not electronically generated and rejected the explanation offered by the appellant and passed an order dated 17-06-2009 levying penalty of Rs.2,50,000/-. 5. The appellant being aggrieved by the order passed by the Check-post authorities filed an appeal before the Joint Commissioner of Commercial Tax (Appeals)-I, Bangalore and explained the circumstances under which, they were compelled to use old Forms VAT 505. It is submitted that the project area is at the remote place of Nandiukur village and there was no Internet access. In view of the urgency, the existing Forms have been used. The goods transported were not for sale and it is only a stock transfer from Nandikur village to Kondappalli, Andhra Pradesh. Hence, the said goods are not liable to be taxed. Further the notification issued by the Commissioner dated 21-3-2009 is not applicable to the appellant. The Appellate Authority, after considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cilities. The Use name and password pertaining to Commercial Taxes Website cannot be shared to all staff members of the Company to avoid any misuse of the same. In view of that, the existing VAT Forms 505 were used. The said Forms were issued by the Commercial Tax officials themselves. Further the Commissioner has no power to issue a notification and he can only issue circular. The State Government alone is authorized to issue notification. The notification issued by the Commissioner is not gazzetted. Discontinuation of old Forms is not within the knowledge of the appellant. Hence the imposition of penalty by the Check-post authority is contrary to law. The First Appellate Authority on considering the entire aspect of the matter set aside the order passed by the Check-post authorities. The reasons assigned by the Revisional Authority is erroneous in law and sought for setting aside the same. He relied upon the judgments reported in 2012(74) KLJ 419 (Time Tech India Private Limited V/S State of Karnataka); 2012(73) KLJ 423 (Elbit Medical Diagnostics Limited, Bangalore V/S The Additional Commissioner of Commercial Taxes (Appeals), Zone-I, Bangalore), 1997(43) KLJ 390 (N.Subramanya V/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use the Form VAT 505 for transportation of goods from Nandikur village, Udupi District to Kondapalli of Andhra Pradesh. The Check-post authorities did not accept the explanation offered and imposed penalty. The Appellate Authority set aside the said order of imposing penalty on an appeal filed by the appellant on the ground that the goods transported are not the taxable goods and imposition of penalty is contrary to law. However, the Revisional Authority felt that the order passed by the Appellate Authority is erroneous and prejudicial to the interest of the Revenue and issued notice. The explanation offered as to under what circumstances the appellant used Form VAT 505 was not accepted and set aside the order passed by the Appellate Authority and restored the order passed by the Check-post authorities. 12. Originally, the place of business of the appellant was situated under LVO-020. However, in the year 2007, the appellant shifted the principal place of business to Kalyananagar, which comes under LVO 055. The notification dated 21-3-2009 issued by the Commissioner of Commercial Taxes is applicable only to those persons whose principal place of business is situated under LVO 02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds with valid document as required under Section 53(2)(b) of the Act. When such being the case, the question of imposing penalty under Section 57(12) of the Act does not arise. There is no breach of any statutory duty. Further, the Commissioner can only issue circular and he has no power to issue notification under the Act. All the notifications had to be issued by the State Government and it has to be gazetted. In the instant case, the notification dated 21-3-2009 is not gazetted. Hence it cannot be treated as mandatory. The revisional authority without considering the objections raised by the appellant, only under the impression that there is revenue loss to the State Government had set aside the order passed by the Appellate Authority which is contrary to law. In the judgment relied upon by Sri.Thirumalesh, reported in 2012(74) KLJ 419 (supra), this Court has clearly held as follows: 3.The provisions of Section 53 of the KVAT Act, applies to a transfer of goods intra-State i.e., from place to place in the State. In the instant case. It is not disputed by the respondent that it is a inter-State transport and the assessee had produced sufficient material to show that the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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