M/S. KVN Impex (Pvt) Ltd. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA,** **1944** **OT.REV NO. 58 OF 2019** **VAT 3/2015 OF AGRL.I.T.ADDITIONAL BENCH,KOZHIKODE** ## **REVISION PETITIONER/S:** M/S. KVN IMPEX (PVT) LTD. KNV ARCADE, MEENCHANDA, KOZHIKODE, REPRESENTED BY ITS DIRECTOR M K RAJESH BY ADVS. R.JAIKRISHNA SRI.C.S.ARUN SHANKAR SRI.T.G.MADHAVANUNNI ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY DEPUTY COMMISSIONER(LAW), COMMERCIAL TAXES, ERNAKULAM PIN 682 015 ## **OTHER PRESENT:** GP M.M. JASMIN THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OT.REV NO. 58 OF 2019** -2- ## **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **O.T.REV NO.58 OF 2019** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## ORDER (Dated this the 30[th] day of November 2022) ## Basant Balaji J., The revision petitioner challenges the order of the Tribunal in TA (VAT) No.03 of 2015 dated 20.8.2018, whereby the appeal preferred by the petitioner was dismissed. 2. The petitioner is a registered dealer in packing materials. He imported raw materials for their goods from a seller in Dubai. The goods reached Cochin port and from there, it was taken to the place of business in a vehicle with registration No.KL-07 A2 2910. On 6.9.2011, the **OT.REV NO. 58 OF 2019** consignment was intercepted by the Intelligence Inspector, Commercial Taxes, Squad II, Mattancherry and detained the goods. A notice under Section 47 of the Kerala Value Added Tax Act (for short 'the KVAT Act')was issued to the petitioner alleging certain defects. Thereafter, the goods were released on furnishing security. 3. The Intelligence Officer conducted an enquiry proceedings under Section 47 of the KVAT Act and a penalty order was issued on 27.2.2012. Aggrieved by the penalty order, the petitioner filed appeal before the Assistant Commissioner (Appeals), which was numbered as KVATA No.517 of 2013. 4. The first appellate authority, after hearing the parties confirmed the penalty as per order dated 22.8.2014. The petitioner took the matter before the Tribunal and the **OT.REV NO. 58 OF 2019** Tribunal, by the impugned order, dismissed the appeal. Aggrieved by the order of the Tribunal, this revision is filed under Section of 63 of the KVAT Act read with Rule 18 of the KVAT Rules, on the following questions of law: “(i)Whether proceedings under Section 47 can be invoked against the consignment and owner of the goods for the want of Form 8FA declarations, when the transaction is not exigible to tax under the KVAT Act, 2003? (ii) Whether penalty proceeding under Section 47 is sustainable, when the transaction in question is properly accounted by the petitioner in his books and disclose in the return?” 5. The Commercial Tax authorities intercepted the goods and detained the same suspecting to evade payment of tax and not carrying the e-declaration in Form 8FA while transporting the goods. **OT.REV NO. 58 OF 2019** 6. An enquiry under Section 46A of the KVAT Act was conducted and the assessee failed to produce the books of accounts and hence, the Intelligence Inspector was constrained to dispose of the case on merits. The officer found that a copy of e-declaration was not accompanied with the consignment which is mandatory as per Circular No.16/2011 of the Commissioner of Commercial Taxes, Thiruvananthapuram and therefore, imposed a penalty of Rs.1,40,005/-. The first appellate authority also concurred with the finding that the revision petitioner has not declared the goods at any check posts or before the Commercial Tax Officer, nor it was accompanied by the e-declaration in Form 8FA. 7. Section 46(3)(e) of the KVAT Act casts a duty on the dealer while transporting the goods out of the State **OT.REV NO. 58 OF 2019** -6- through coastal cargo, Air or Railways, the importer or clearing agents, shall on arrival of such goods, furnish a declaration before the Commercial Tax Officer having jurisdiction over the place of import or the person in charge of vehicle shall keep a copy of such declaration duly acknowledged by the concerned authority and shall produced for verification by any authority under the Act. 8. It is an admitted fact that the e-declaration under Form 8FA was not kept by the consignor while transporting the goods after clearing before the Customs Authorities. The documents stated in Section 46(3)(e) of the KVAT Act are mandatory to be accompanied when goods are transported through vehicles. [See **Joy Alukkas India (P) . Ltd. v. State of Kerala [2022 (6) KHC 549]** ] **OT.REV NO. 58 OF 2019** 9. The Tribunal was therefore, justified in dismissing the appeal on the ground that mandatory requirement under Section 46(3) of the KVAT Act is not complied with. Moreover, revision under Section 63 of the KVAT Act mandates that revision can be entertained only on a question of law. On going through the order of the Tribunal, we find that there is no illegality or impropriety in the order passed by the Tribunal and the questions of law raised by the petitioner are answered against him and therefore, the revision fails. Accordingly, this O.T. Revision is dismissed. Sd/ **S.V.BHATTI, JUDGE** **sd/ BASANT BALAJI, JUDGE** _dl/downloads_ ## **OT.REV NO. 58 OF 2019** -8- ## **APPENDIX OF OT.REV 58/2019** PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE DETENTION NOTICE ISSUED BY THE INTELLIGENCE INSPECTOR DATED 0609-2011 ANNEXURE B TRUE COPY OF THE PENALTY ORDER ISSUED BY THE INTELLIGENCE OFFICER DATED 27-022012 ANNEXURE C TRUE COPY OF THE ORDER PASSED BY THE ASSISTANT COMMISSIONER(APPEALS), KOZHIKODE DATED 22-08-2014 - ANNEXURE D TRUE COPY OF THE INVOICE DATED 07-082011 - ANNEXURE E TRUE COPY OF THE PACKING LIST OF GOODS DATED 07-08-2011. - ANNEXURE F TRUE COPY OF THE BILL OF LADING DATED 07-08-2011 - ANNEXURE G TRUE COPY OF THE BILL OF ENTRY DATED 0109-2011 - ANNEXURE H TRUE COPY OF THE RECEIPT OF CUSTOM DUTY DATED 02-09-2011 - ANNEXURE I TRUE COPY OF THE DELIVERY NOTE DATED 0609-2011 - ANNEXURE J TRUE COPY OF THE PURCHASE LEDGER DATED NIL ANNEXURE K TRUE COPY OF THE MONTHLY RETURN DATED 15-10-2011 ## **OT.REV NO. 58 OF 2019** -9- ANNEXURE L TRUE COPY OF THE ORDER OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL IN T.A (VAT) NO. 3/2015 DATED 20-08-2018