IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA

DATED THIS THE 5TH DAY OF JULY, 2013

PRESENT

THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR

AND

THE HON'BLE MR.JUSTICE V.SURI APPA RAO

S.T.A. NO.29/2012

BETWEEN :

M/s.SITS Express Private Limited No.21/2, Harish Compound Behind TCI Petrol Bunk Madavara Post Madanayakanahalli Bangalore-562 123 ..Appellant

(By Sri H.R.Kambiyavar, Adv.,)

AND :

The Addl.Commissioner of Commercial Taxes Zone-II, Vanijya Terige Karyalaya Gandhinagar Bangalore-9 ..Respondent

This Appeal is filed under Section 66(1) of the karnataka Value Added Tax Act, 2003 praying that this Hon'ble Court to allow the appeal and quash the impugned order at Annexure-A, dated 1.2.2012 passed by respondent restoring the penalty order dated 13.10.2009 Annexure-C as the same is beyond the scope of the powers vested in the respondent under Section 64(1) of the KVAT Act, 2003, etc.

This Appeal coming on for admission, this day MOHAN .M. SHANTANAGOUDAR, J., delivered the following:-

J U D G M E N T

The appellant is engaged in the business of transportation of goods. It was entrusted with the transportation of HPP-453 (Decoquinate), an excisable commodity by M/s.Hikal Limited, Plot No.629/630B, GIDC, Panoli, Bharuch District, Gujarat, who is a dealer registered in the State of Gujarat. The said material was being transported to its own Branch at No.82/A, KIADB Industrial Area, Jigani, Anekal Taluk, Bangalore. Thus, the goods were moving from one State to another State.

When the carrier entered Karnataka limits, the report ought to have been made at the first situated check post or barrier as per Section 53 (2)(d) of the Karnataka Value Added Tax Act, 2003 ('Act' for short). However, the appellant did not report at the first situated check post in Karnataka. On 18.9.2009 when the goods vehicle was travelling near Bijapur, the Commercial Tax Officer, Bijapur checked the goods vehicle and demanded the documents carried by the driver of the goods vehicle. Check post authorities, having observed that the documents were not affixed with the seal of the entry check post and the goods were not covered under the tax invoice, issued the G.C.endorsement dated 18.9.2009 which was later converted into notice dated 1.10.2009 proposing to levy penalty. The appellant in response to notice issued by the check post authority submitted explanation on 5.10.2009. The check post authority on considering the representation of the appellant, passed the order of penalty on 13.10.2009 levying penalty of Rs.3,63,064/- under Section 53(12) of the Act. The appellant challenged the levy of penalty before the Joint Commissioner of Commercial Taxes, Belgaum Division, Belgaum. The first appellate authority passed the order dated 23.2.2011 allowing the appeal. On 1.2.2012, the respondent initiated suo moto revisional proceedings under Section 64(1) of the Act and set aside the order of the first appellate authority considering the same to be erroneous, illegal, improper and prejudicial to the interest of revenue. The said order dated 1.2.2012 at Annexure-A is called in question in this appeal.

2. We do not find any ground to interfere with the order passed by the revisional authority. We do not also find any question of law to entertain in this appeal. According to the appellant, the goods vehicle did not enter the first situated check post as the one of the relative of co-driver was not well and hence the goods vehicle has taken deviation route without giving entry through first the check post. According to the petitioner the goods vehicle passed through Mohar, via Mudrac, Maharashtra State, as an alternative route. However, nothing is produced by the appellant to prove that the vehicle passed through Mohar, via Mudrac, Maharashtra State because of illness of relative of co-driver. The document relating to illness of any person is not produced. Even before the first appellate authority, such documentary proof was not produced. In the absence of documentary proof, the revisional authority has rightly concluded that the

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vehicle had passed through the entry of the first check post. Thus, it is clear that the appellant did not report at the first check post before proceeding further. The appellant ought to have produced the documents before the Officer Incharge of the check post or barrier and obtain the seal of such Officer affixed thereon. Since such a procedure is not followed, the revisional authority has rightly concluded that the appellant is to be directed to pay penalty as determined by the revisional authority. As the offence is committed by the person incharge of the goods vehicle for having not reported to the first check post of the State, the penalty is rightly levied. In the absence of documentary evidence, the deviation route taken by the incharge of the vehicle remained without proof.

In this view of the same, no interference is called for. Appeal fails and accordingly, the same stands dismissed.

Sd/- JUDGE

Sd/- JUDGE

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