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2012 (11) TMI 1055 - KERALA HIGH COURTAssessment of gold challenged - Penalty under section 67(1) of the KVAT Act - Held that:- Gold bar dealt with by the petitioner-banks cannot be treated as gold bullion coming within entry 1(2) of the Second Schedule to the KVAT Act with HSN Code 7108.12.00. But it can only be considered as "semi-manufactured" form of gold coming within HSN Code 7108.13.00 as described in the Customs Tariff Act. Hence inclined to follow the decision in HDFC Bank's case [2010 (7) TMI 883 - KERALA HIGH COURT] which is binding. Accordingly the challenge against exhibits P5 and P6 series assessments deserves no merit. It is not relevant as to when the assessee had actually paid the tax amount due. But the relevant aspect to be considered is as to whether the assessee had failed in making payment of the tax by mis-classification of the commodity by acting deliberately in a contumacious manner with an attempt to evade payment of tax. The fact that the assessing authority had finalised a best judgment assessment only after the Commissioner of Commercial Tax had clarified the matter, will indicate that the assessee was right in stating that they were under a bona fide belief that appropriate entry under which the commodity is to be included was entry within the Second Schedule. Therefore it is inclined to quash the impugned orders of penalty.
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