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TMI Blog2011 (2) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax, and so much so, there is no case of penalty against the petitioner. Penalty cancelled. Appeal allowed. - OT. Rev. No. 68 of 2010 - - - Dated:- 28-2-2011 - RAMACHANDRAN NAIR C.N. AND BHABANI PRASAD RAY JJ. R. Ramadas for the petitioner Shamsuddeen, Government Pleader, for the respondent JUDGMENT This is a revision filed under section 63 of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as the Act , for short) challenging the orders of the Tribunal confirming penalty levied on the petitioner for alleged evasion of tax for inter-State purchase of steel cylinders used in the packing and sale of medical oxygen. We have heard learned counsel appearing for the appellant and learned Government Pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate authority and also before the Tribunal. It is against the order of the Tribunal confirming penalty, the petitioner has filed this revision case before us. Before us learned counsel for the petitioner contended that goods imported are capital goods, which are not for sale, and therefore levy of penalty is unauthorised. The learned Government Pleader, on the other hand, contended that the petitioner answers the description of importer defined under section 2(xxii) of the Act. Since a dealer paying presumptive tax is not entitled to import goods from outside the State, penalty for evasion of tax is rightly levied under section 47(6) of the Act is the contention of the learned Government Pleader. On going through the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise for the purpose of business; 2. (ix) 'business' includes, (a) any trade, commerce, manufacture or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and (b) any transaction in connection with, or incidental or ancillary to such trade, commerce, manufacture, adventure to concern; What is clear from section 6(5) extracted above is that an importer is not entitled to claim benefit of payment of presumptive tax under section 6(5) of the Act. Further, from clause (d) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inders and he, therefore, cannot be said to be engaged in the business of cylinders within the meaning of business , which is the term contained in the definition clause of importer . So much so, when a dealer in second sale of medical oxygen, which is taxable goods, imports cylinders as capital goods for packing and sale of medical oxygen, he cannot be said to be an importer of cylinders disentitling him to the benefit of payment of presumptive tax under section 6(5) of the Act. The learned Government Pleader appearing for the respondent referred to the decision of the Supreme Court in State of Orissa v. Asiatic Gases Ltd. reported in [2007] 7 VST 531 (SC), wherein the Supreme Court held that collection of rent for cylinders suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is also a matter to be considered by the assessing officer. Leaving open all these issues to be considered in the course of assessment by the assessing officer, we hold that the inter-State purchase of cylinders as capital goods by the petitioner will not make him an importer within the meaning of that term contained in section 2(xxii) of the Act, and consequently the transaction does not by itself disentitle him to pay presumptive tax under section 6(5) of the Act. Consequently we hold that there is no attempt of evasion of tax in the inter-State purchase of cylinders by the petitioner. Even though rule 58(18) of the Rules does not authorise the petitioner being registered dealer to use form 16 for transport of capital goods, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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