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2010] Krilax Impex Private Ltd. v. CCT (Ker.)
251
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acceptable), the petitioner might be spared with respect to the imposition
of penalty.
6. After considering the pleadings and the materials on record, the second
respondent found that there was absolutely no merit in the contentions
raised by the petitioner and that the conscious role played by the petitioner
in causing the bogus ‘C’ forms to be filed for claiming the tax benefit, is very
much discernible from the materials on record. In the said circumstance,
interference was declined as per Ext. P4; which in turn was subjected to
challenge by filing second revision before the first respondent. The second
revisional authority considered the entire facts and circumstances and
found that absolutely no ground was made out to have a deviation to the
course pursued by the authorities below. Accordingly, the impugned
order was confirmed as per Ext. P5, imposing the maximum penalty,
which in turn has been subjected to challenge in this writ petition.
7. The learned counsel for the petitioner, referring to the various decisions
rendered by the Apex Court as well as different High Courts in State of
Madras v. Radio & Electricals Ltd. [1966] 18 STC 222, Chunni Lal Parshadi
Lal v. Commissioner of Sales Tax [1986] 62 STC 112, Agfa Gavert India Ltd.
v. State of Tamil Nadu [2001] 123 STC 108, Hindustan Steel Ltd. v. State of
Orissa [1970] 25 STC 211, Paisons v. Intelligence Officer [1992] 1 KTR 143
(Ker.) and Karthik Electric Control v. CTO [2008] 15 VST 450 (Mad.),
submits that, the departmental authorities have not approached the issue
in the proper perspective while considering the question of penalty. The
learned counsel submits that, penalty is not automatic and that, it will be
attracted only if there is a conscious attempt on the part of the defaulter
to have defrauded the revenue. It is further pointed out that, the imposition
of penalty will not be justified unless and until the offence in this
regard is established beyond reasonable doubt.
8. The learned Government Pleader appearing on behalf of the
respondents submits that, there is no dispute with regard to the law
declared by the Courts as above and that in almost all the above cases, the
issue involved was, whether the seller was liable for the subsequent course
and conduct pursued by the buyer; which was answered in the negative.
Unlike this, in the instant case, the question involved is, whether the
petitioner had pursued any act to defeat or defraud the revenue by
submitting bogus ‘C’ forms. This question has been considered by the
original authority i.e., 3rd respondent while passing Ext. P3 order, particularly
at running pages 5 to 9, wherein the ‘statement of objection’ submitted
by the petitioner has been extracted. In sub-paragraph 4 of the above
extract, the petitioner has virtually conceded that, the Assistant Commissioner
of Commercial Taxes, Check Post, Mangalore by his letter dated
26-12-2001 had informed the petitioner that the concerned consignee was
not available at Mangalore and that the Sales Tax registration number in
the invoices was fictitious.
GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 127