State of Karnataka and Another vs Century Automobiles

N. Kumar, J.—The State has preferred this revision against the order passed by the Karnataka Appellate Tribunal in S.T.A. No. 69 of 2002, dated December 31, 2002 allowing the appeal and setting aside the levy of penalty u/s 28A(4) of the Karnataka Sales Tax Act, 1957 (for short, hereinafter referred to as "the Act").

The facts leading to this dispute are as under:

The respondent is a registered dealer under the provisions of the Act dealing in Hero Honda Motor cycles. The goods vehicle bearing No. KA 14/8117 was transporting ten Hero Honda Motor cycles belonging to the respondent on August 28, 2001 to Harihar. As the said goods vehicle did not stop at the sales tax check-post, Harihar, it was chased, intercepted and brought to the sales tax check-post. The person-in-charge of the goods vehicle tendered a letter head issued by the respondent wherein it was stated that they are dispatching ten motor cycles to Nandi Motors, for demonstration. He did not produce the declaration in form 39 or any sale bill. Therefore, the authorities held that it violated the provisions of Section 28A(2) of the Act. The check-post authority issued a show cause notice proposing a penalty of Rs. 1,54,058.40 for violation of Clause (b) of Sub-section (2) of Section 28A of the Act. The person-in-charge of the goods vehicle filed a reply requesting the authorities to reduce the penalty. In the light of the request made for reduction of penalty, the authorities reduced the penalty to Rs. 1,02,706 equal to twice the rate of tax on the value of the goods which were being transported, by means of an order dated August 29, 2001. The penalty was paid without protest and the vehicle was released.

Thereafter, the said order was challenged before the Joint Commissioner of Commercial Taxes, Davanagere, who on reconsideration of the entire material dismissed the same. Aggrieved by these two orders the respondent preferred a second appeal before the Tribunal. The Tribunal held the goods were not accompanied by any documents, is only a technical violation. Since the said goods in any event could not be sold without necessary invoices and delivery notes, the question of evading tax does not arise, it set aside the penalty imposed by the authorities. Aggrieved by the said order, the State has preferred this revision.

Learned Additional Government Advocate for the State submitted that, when once the violation of the mandatory requirement of Sub-section (2) of Section 28A is established and when the cause shown was held to be not sufficient, authorities were justified in imposing the penalty prescribed under Sub-section (4) of Section 28A. In fact, the person-in-charge of the vehicle in reply to the show cause notice did not dispute the violation and on the contrary pleaded for reduction of the penalty which was reduced and penalty was paid. In those circumstances respondents are estopped from contending to the contrary. The Tribunal committed a serious illegality in reversing the penalty imposed by the authorities on the assumption that as the vehicles in question had to be sold only with necessary documents and there cannot be any tax evasion and by holding it as purely technical violation. Therefore, she submits that the impugned order of the Tribunal requires to be set aside.

Per contra, the learned Counsel for the respondent submitted that the material on record discloses that the vehicles were transported from Shimoga to Harihar for the purpose of demonstration and it was sent along with a letter showing the purpose for which it was transported, which constitutes "such other document" referred to in Clause (b) of Sub-section (2) of Section 28A. As a motor vehicle could not be sold without registration and valid documentation, there cannot be any tax evasion as the respondent being a registered dealer. Therefore, he submits that the Tribunal was fully justified in its finding and in setting aside the penalty imposed.

In the light of the aforesaid rival contentions, the point that arises for our consideration is, whether the Tribunal was justified in the facts of this case in interfering with the penalty imposed by the authorities when admittedly there was a violation of the mandatory requirement of Section 28A(2) of the Act.

In order to answer the aforesaid question, it may be useful to notice the provision of law. Section 28A reads as under:

28A. Establishment of check-post or barrier and inspection of goods while in transit.�(1) If the State Government or the Commissioner consider it necessary that with a view to prevent or check evasion of tax under this Act in any place or places in the State, it is necessary so to do, they may, by notification, direct the establishment of a check-post or the erection of a barrier, or both, at such place or places as may be notified.

(2) The owner or person-in-charge of a goods vehicle or a boat, shall (a) carry with him a goods vehicle record, a trip sheet or a log book, as the case may be and

(b) carry with him a bill of sale or a delivery note obtained from the prescribed authority or such other documents, containing such particulars as may be prescribed, in respect of the goods other than those mentioned in Sub-clause (c) carried on the goods vehicle or boat; and

(c) carry with him in addition to a bill of sale, a delivery note obtained from such authority containing such particulars as may be prescribed, if the goods carried in the goods vehicle or boat are arecanut, cardamom, cashew, coconut, coffee, copra, cotton, edible oil including vanaspathi, iron and steel, liquor, oil seeds, pepper, rectified spirit, rubber, timber or such other goods as may be notified by the Commissioner; and

(d) report at the first check-post or barrier situated on the route ordinarily taken from the place in the State, from which the movement of the goods commences, to its destination and produce the documents referred to in Sub-clauses (b) and (c) before any officer-in-charge of check-post or barrier or any other officer as may be empowered by the State Government in this behalf and obtain seal of such officer affixed thereon, and in respect of a bill of sale, shall give one copy thereof and in respect of a delivery note, shall give a copy marked as original, to such officer and carry and retain with him the other copy until termination of movement of the goods ; and

(e) on entering the State limits, report at the first situate check-post or barrier and on leaving the State limits report at the last situate check-post or barrier and shall give a declaration containing such particulars as may be prescribed in respect of the goods carried in the goods vehicle or boat, before any officer-in-charge of the check-post or barrier or any other officer as may be empowered by the State Government in this behalf:

Provided that where the total turnover of the owner or consignor of the goods excluding such goods as may be notified by the Commissioner, for any year as declared in the return for such period is not less than fifty lakh rupees, or where the goods are carried within the limits of a revenue district not as a result of sale, the delivery note shall be the one in the prescribed form permitted to be so issued by him.

(3) At every check-post or barrier, or at any other place when so required by any officer empowered by the State Government in this behalf, the driver or any other person-in-charge of a goods vehicle or boat shall stop the vehicle or boat, as the case may be, and keep it stationary as long as may be required by the officer-in-charge of the check-post or barrier or the officer empowered as aforesaid, to examine the contents in the vehicle or boat and inspect all records relating to the goods carried, which are in the possession of such driver or other person-in-charge, who shall, if so required, give his name and address and the name and address of the owner of the vehicle or boat: Provided that where any goods vehicle is intercepted by the officer empowered at any place other than a check-post or barrier, such officer may, if he deems it necessary, direct the owner or person-in-charge of the goods vehicle to take it to the nearest check-post or police station and such owner or person-in-charge of goods vehicle shall comply with such direction.

Explanation....

The aforesaid provision provides for establishment of check-post or barrier and inspection of goods while in transit with the intention to prevent or check evasion of tax under the Act. The owner or the person-in-charge of a goods vehicle shall carry with him a goods vehicle record, a trip sheet or a log book, a bill of sale or a delivery note obtained from the prescribed authority or such other documents while carrying the goods in the vehicle. Clause (d) of Sub-section (2) of Section 28A makes it mandatory for such owner or person-in-charge to report at the first check-post or barrier situated on the route and produce the documents referred to above and obtain seal of such officer affixed thereon and in respect of a bill of sale, shall give one copy thereof and in respect of a delivery note, shall give a copy marked thereof as original to such officer and carry and retain with him the other copy until termination of movement of the goods. At such a check-post, if so required, the driver or any other person-in-charge of the goods vehicle shall stop the vehicle and keep it stationary as long as may be required by the officer-in-charge of the check-post to examine the contents of the vehicle and if so required give his name and address and the name and address of the owner of the vehicle. In the event the driver or the owner of the vehicle does not stop the vehicle at the check-post as required above, the authorities are vested with the power to chase the vehicle, intercept the vehicle and bring it back to the nearest check-post or police station and thereafter the owner or the person-in-charge of the goods vehicle shall comply with such directions. In the event of the owner or the person-in-charge of the vehicle failing to show cause regarding noncompliance with these mandatory requirements, the officer-in-charge of the check-post has been vested with the power to levy the penalty. If the penalty is not paid the authorities can seize the vehicle and keep it in their custody till the penalty is paid. Therefore, the aforesaid provision provides a comprehensive machinery to prevent evasion of tax and levy of penalty and to impose and collect fine for non-compliance with the aforesaid mandatory provision, when evasion is detected.

However, it was contended by the learned Counsel for the respondent that the letter of the respondent in his letter head constitutes "such other document" referred to in Section 28A(2)(b) and therefore, there was sufficient compliance with the mandatory provisions. Sub-clauses (a) and (b) of Sub-section (2) of Section 28A clearly mention the nature of documents which an owner or a person carrying the goods should possess. It is true in the aforesaid provision the words "such other documents" have been mentioned. Certainly if such other document cannot include the documents which are specifically mentioned in the said provision but at the same time that cannot be interpreted to mean any and every document on which a party can rely. Whenever an owner or person-in-charge of the goods vehicle is transporting goods such as brand new vehicles, certainly he is expected to carry with him a bill of sale or a delivery note obtained from the prescribed authority. "Such other documents" referred to in the section can only mean in the absence of the aforesaid documents, documents showing the title of the goods, or legal possession of the goods which are being transported. If those documents are available, the question of producing such other documents, in place of or in substitution of those documents would not arise. The whole object being to prevent evasion of sales tax, the authorities want to know the dealer to whom the said goods belong to, and whether he had paid tax. In our view a distinction has to be made between transportation of goods for commercial purposes and for personal purposes. In respect of commercial purposes, the goods shall be accompanied by the documents referred to supra and there is no escape from complying with the mandatory requirement of law. In fact, a Division Bench of this Court in the case of Supertronix v. State of Karnataka [2002] 126 STC 275, dealing with a similar situation has held that, the goods of an individual who is not carrying on the trade in household articles, are not covered by any provision of the Act and it cannot be considered that the provisions of Section 28A are applicable to such transfer of goods from one place to another. Therefore, if an owner or a person-in-charge of a vehicle is transporting goods, the goods must accompany the documents which are set out in the said provision or such other documents which are by their very nature incidental to the trade which he is carrying on.

In the instant case it is not in dispute that the person-in-charge of the vehicle was carrying ten brand new Hero Honda Motor cycles of three varieties in different shades to be delivered to Nandi Motors at Harihar. Bill of sale and a delivery note obtained from the prescribed authority in respect of the goods which were transported were available but the same were not accompanying the goods. The document relied on was a letter in the letter head of the first respondent showing that the said goods were transported from Shimoga to Harihar for the purpose of exhibiting the same for sale at Harihar. Even the said document was not produced for inspection before the check-post authorities as required u/s 28A(2)(d). On the contrary, the vehicle carrying the goods was not stopped at the check-post. The vehicle had to be chased, intercepted and brought back to the check-post. When a show cause notice was issued pointing out the non-compliance of the statutory provisions and consequently proposing a sum of Rs. 1,54,058.40 as penalty, the person-in-charge of the goods vehicle filed a reply without disputing the non-compliance complained of but requesting the authorities to reduce the penalty. Accordingly, the penalty was reduced to Rs. 1,02,706. Without any protest he paid the said amount. It is thereafter, the respondent challenged the order. Therefore, it is clear there is a clear contravention of the statutory provisions, admission of non-compliance of the statutory provisions and consequent admission of liability to pay the penalty, which, in fact, was actually paid. In the light of these undisputed facts, the Tribunal was not justified in interfering with the order imposing the penalty on the ground that as the motor cycles could not be sold without an invoice or a delivery notice, there cannot be any evasion of tax and the document produced, namely, the letter head would satisfy the requirement of law. The said finding is illegal, contrary to law and cannot be sustained. The Tribunal committed a serious error in interfering with a concurrent finding of fact recorded by the authorities without any justification. Though the finding of fact recorded by the Tribunal is final, as the said finding is not based on legal evidence and contrary to the admitted facts in the case, the said finding of fact recorded by the Tribunal requires to be interfered with. Hence, we pass the following order:

(a) The revision petition is allowed.

(b) The impugned order dated December 31, 2002 in S.T.A. No. 69 of 2002 passed by the Karnataka Appellate Tribunal is set aside.

(c) The order passed by the check-post authority as affirmed by the first appellate authority is restored.

No costs.