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TMI Blog2011 (4) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 - ABDUL REHIM C.K. J. N. Muraleedharan Nair and Smt. K. Kymavathy for the petitioner K.P. Pradeep, Special Government Pleader (Taxes), for the respondents JUDGMENT Challenge in this writ petition is against exhibit P4 order issued by the second respondent imposing penalty under section 47(6) of the Kerala Value Added Tax Act, 2003 ( the KVATAct ). Brief history of the case is that, the petitioner who is a resident of Dharmapuram Taluk in Tirupur District of Tamil Nadu State, had attempted transport of an excavator loader (JCB) through the Commercial Tax Check-post at Gopalapuram at the border of the State of Kerala, and it was detained by the first respondent, invoking section 47(2) of the KVATAct, on issuing exhibit P2 notice. The reason for detention mentioned in the notice is as follows: On verification of the records (RC book of the excavator) it is found that the excavator is manufactured in 2004 and the same is newly painted. Hence it is suspected that it is for sale or contract work within the State. The registration number of the vehicle is also not displayed. Hence, the SD and cess demanded. According to the petitioner, the excavator was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second respondent had not received such document nor had adverted to the contents thereof. Specific case of the petitioner is that, the excavator in question was not intended to be transported to the State of Kerala and it happened to reach the border check-post only because of a mistake in the route committed by the driver. It is the specific case put forth by the petitioner that, from the moment of interception onwards the petitioner/the person in charge of the vehicle was requesting for permission to take back the excavator to Meenakshipuram , which the authorities have not acceded to. Hence it is contended that the detention itself was illegal. However, exhibit P4 order is challenged on the specific ground that the enquiry officer had not arrived at any conclusive findings to the effect that there was any attempt with respect to evasion of tax due under the KVATAct. Therefore the petitioner seeks to quash exhibit P4. A preliminary objection was raised on behalf of the respondents regarding maintainability of the writ petition, based on availability of alternative remedy. Of course, exhibit P4 is an order appealable under the provisions of the KVATAct, before the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority is authorised to intercept and demand security deposit if he has reason to suspect that the person transporting the goods is attempting to evade payment of tax or the goods are not covered by proper and genuine documents (in case where such documents are necessary).. But under section 47(6) the authorised officer conducting the enquiry is empowered to impose penalty only if such officer finds that there has been an attempt to evade the tax due under the Act. From the scheme of the statute it is clear and evident that, if any detention is made on the basis of a reasonable suspicion regarding attempt to evade payment of tax or on the basis of lack of proper and genuine documents, it shall be succeeded by an enquiry by another officer of higher rank. The culmination of such enquiry should result in an adjudication as to whether there was actual attempt to evade payment of tax due under the Act. Hence it is evident that, even if there existed a reasonable suspicion regarding attempt of evasion of tax, penalty can be imposed after completing the enquiry, only if the officer arrives at conclusive finding that, such attempt was actually there in existence. So also, even if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal consequence, which can be sustained only if there is clear proof available regarding guilt of the party, attempting evasion of payment of tax. In the case at hand, the specific contention of the petitioner is that the goods in question were never intended to be brought to the State of Kerala. The learned counsel appearing for the petitioner had raised a contention that, the very fact that the goods were not accompanied by any documents will only support and fortify genuineness of the fact as alleged. According to him, nobody will attempt to bring the excavator into the State of Kerala through the border check-post, without there being any document accompanied with the transport. If it was any contumacious attempt to evade payment of tax, definitely the driver would have chosen only a by-route, rather than bringing the vehicle directly to the check-post. It is the further contention that, the driver as well as the petitioner was repeatedly making requests for taking back the excavator to Meenakshipuram . It is further contended that the petitioner is not in a position to adduce any negative evidence in order to substantiate the claim that the excavator was not intended to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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