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TMI Blog2010 (9) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the goods vehicle is presumed to be its owner and not the registered owner of the vehicle? Whether, on the facts and circumstances of the case, the respondent is erred in not appreciating the fact that for the purpose of Explanation to section 18B of the Karnataka Tax on Entry of Goods Act, 1979, consignor of the goods cannot be considered as the 'hirer' of the goods vehicle and the said word, 'hirer' is applicable to only a transporter who obtains goods vehicle on hire in case he does not own a goods vehicle? Whether, on the facts and circumstances of the case, the respondent is justified in drawing a presumption that the goods in question have been sold inside the State for the only reason that the transit pass has not been surrendered at the exit check-post inspite of the fact that the assessing authority of the consignor has in his assessment order passed under the provision of the Karnataka Sales Tax Act, 1957 given a finding that the very same goods as that involved in the present case have been transported out of the State of Karnataka? Held that:- When once by way of rebuttable evidence, the appellant relies upon the assessment order pertaining to M/s. Vivek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry of Goods Act, 1979 are not applicable to the facts of the present case? (iii) Whether, on the facts and circumstances of the case, the respondent is right in rejecting the contention of the appellant that the proceedings initiated against the appellant under section 18B of the Karnataka Tax on Entry of Goods Act, 1979 is void ab initio in view of Explanation to the said section according to which hirer of the goods vehicle is presumed to be its owner and not the registered owner of the vehicle? (iv) Whether, on the facts and circumstances of the case, the respondent is erred in not appreciating the fact that for the purpose of Explanation to section 18B of the Karnataka Tax on Entry of Goods Act, 1979, consignor of the goods cannot be considered as the 'hirer' of the goods vehicle and the said word, 'hirer' is applicable to only a transporter who obtains goods vehicle on hire in case he does not own a goods vehicle? (v) Whether, on the facts and circumstances of the case, the respondent is justified in drawing a presumption that the goods in question have been sold inside the State for the only reason that the transit pass has not been surrendered at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the return submitted by the owner of the goods, i.e., Vivek Petro, Mangalore, concluded that there was no evasion of any tax. Therefore, on assumptions taxes cannot be levied when the assessee was able to establish that there was ample evidence to prove the movement of goods outside the State and not sold within the State. He also refers to the release of goods of naptha in favour of the consignor and also letters issued by the Deputy Commercial Tax Officer of Pondicherry. The assessing authority had come to conclusion that all the entries effected by the consignor did move out of the State. Based on this finding, the appellate authority allowed the appeal in favour of the appellant, setting aside the orders of the check-post officer dated November 30, 2003. The revisional authority took up the matter by way of suo motu revision and issued a show-cause notice to the assessee calling upon him to explain the contents of the notice. The assessee appeared before the revisional authority and submitted the explanation. However, the revisional authority found the order of the appellate authority as improper and prejudicial to the interest of the State revenue. Ultimately the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried thereby have been sold within the State by the owner of the vehicle and shall, notwithstanding anything contained in this Act, be assessed to tax by the officer empowered in this behalf in the prescribed manner. (5) If the owner of the vehicle fails to obtain the transit pass as provided under sub-section (1), or fails to deliver the same as provided under sub-section (2), he shall be liable to pay by way of penalty a sum not exceeding double the amount of tax leviable on the goods transported. (6) The amount of tax and the penalty levied under this section shall be recovered in the prescribed manner. Explanation. In case where a vehicle owned by a person is hired for transportation of goods by some other person, the hirer of the vehicle shall for the purposes of this section be deemed to be the owner of the vehicle. Presumption under sub-section (3) of section 18B of the Act undisputedly is a rebuttable presumption. Rebuttable presumption would mean the person against whom the impugned order came to be passed by the check-post officer must be able to satisfy the authorities that there was no evasion of payment of tax. If the intention of the Legislature were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it check-post, so far as M/s. Vivek Petro is concerned, it was satisfied that all the goods that were imported which were meant to be sent to Pondicherry did reach Pondicherry and not even a single incident the Revenue was able to establish that it was sold within the State. He was justified in saying that the assessee, i.e., M/s. Vivek Petro had accounted all the goods that were imported by them and nothing escaped from the tax. In that view of the matter, when once by way of rebuttable evidence, the appellant relies upon the assessment order pertaining to M/s. Vivek Petro, in the absence of the Department establishing that the consignment in question did not move outside the State, revisional authority was not justified in setting aside the orders of the appellate authority. As a matter of fact, the revisional authority did not even discuss what was the rebuttable evidence relied upon by the owner of the vehicle and whether the order of the assessing authority had reached finality or not. On the other hand, the learned Government Advocate is fair enough to bring to our notice that the order of assessment pertaining to M/s. Vivek Petro was the subject-matter of suo motu revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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