IMPORTANT POINT
While making any transportation of goods, the person transporting the goods shall have all the necessary documents, in accordance with the provision of Kerala Value Added Tax Act. Otherwise, the assignee is liable for penalty.

JUDGMENT :

Gopinath, J.

This revision petition is filed challenging the order of the Kerala Value Added Tax, Additional Appellate Tribunal, Palakkad in TA (VAT) 889/2013 through which the Appellate Tribunal reversed the finding of the first Appellate Authority that no penalty need be imposed on the revision petitioner. The Tribunal found that Annexure-A order of the Intelligence Officer, Squad No. III, Department of Commercial Taxes, Palakkad, was correct in law and required no interference at the hands of the first Appellate Authority.

2. The brief facts of the case are that the revision petitioner is an authorised distributor for Hero Honda Motor Cycles and an assessee under the provisions of the Kerala Value Added Tax Act, 2003 (for short KVAT Act). On 2.11.2007 a vehicle carrying 8 motor cycles was intercepted by the Intelligence Inspector, Squad No. III, Commercial Taxes, Palakkad. On inspection, it was noticed that the motor cycles were being transported under cover of delivery notes which were not accompanied by other documents, such as invoice, which are mandatory u/s. 46 of the KVAT Act. It is the case of the petitioner that this was a genuine mistake at the hands of the driver of the vehicle carrying the motor cycles and that the motor cycles were sold to a dealer named M/s. Wheels Automobiles in Trichur. It is stated that the vehicle carrying the goods was intercepted very near to the business premises of the revision petitioner and immediately the necessary documents were brought and produced before the Intelligence Inspector. The Intelligence Inspector however, allowed the transport of the goods only on payment of security of Rs. 1,00,000/-. Thereafter, vide Annexure-A order a penalty of Rs. 1,00,000/- has been imposed u/s.47(6) of KVAT Act, after due enquiry. The first Appellate Authority by Annexure-B order set aside the penalty imposed holding that even if the necessary documents were not available at the time of inspection, the documents produced at the time of enquiry have to be taken into consideration before deciding whether to impose any penalty. The first Appellate Authority also relied on the judgment of this Court in M.C.Dowell & Co. Ltd. v. Sales Tax Officer (Enquiry), Kasaragod and others reported in (1993) KTR 447(Ker) to reach its conclusion that no penalty was liable to be imposed. The Tribunal reversed the said finding of the first Appellate Authority, holding as under:

"When the vehicle was intercepted by the Intelligence Inspector, the transportation of the 8 Motor Cycles was without any of the documents prescribed under Section 46(3) of the KVAT Act. All the more the copy of the new vehicles delivery note issued by the respondent for transportation of goods was defective. The consignor's address is not entered therein, value of vehicles are not entered and the consignor's liability to pay tax is also not proved therein. At the enquiry stage, the appellant gave an explanation that the driver had not produced the bill as it has been misplaced. This argument can only be considered as a general argument and has no legal back up. Here the Intelligence Officer has specifically found out that the delivery chalan accompanying the transport was totally defective. The Respondents version that the details in the sale bill subsequently produced and that in delivery chalan are one and the same. If so, the non entering of consignor's address, value of the vehicle in the Delivery Chalan can be considered as intentional and only of an attempt at evasion of tax. When statute cast that such and such mandates shall be complied, while transporting goods, deviation from that mandates, and subsequent production of document cannot have the support of law as the very purpose for which such a provision has been incorporated in the statute itself is defeated. The citation referred by the respondent cannot be applied to this case as in those cases, there were no definite finding of the Enquiry Officer, whether there were att