TMI Blog2007 (7) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... -------- ORDER This appeal is directed against the order dated June 23, 2005 passed by the High Court of Karnataka at Bangalore in Sales Tax Revision Petition No. 32 of 2005 filed by the appellant, whereby the High Court partly allowed the petition filed by the appellant. Brief facts giving rise to the filing of the present appeal by special leave are as follows: The appellant is a transporter engaged in transporting goods from Mangalore (Karnataka) to various destinations in the country. He is the owner of vehicle (hereinafter referred to as, "the appellant") bearing Registration No. KA-19A-3435. The companies, namely, M/s. PAS Petro Products and M/s. Vivek Petro Chemicals Private Limited, who are registered dealers under the provisions of the Karnataka Sales Tax Act, 1957 (for short, "the Act"), having their head office at Pondicherry/Chennai and branch office at Mangalore, are the consignors of the goods in question. During the months of May and June 2002, the appellant had transported superior kerosene oil and naptha from Mangalore Port (stock points at Mangalore) to Pondicherry/Chennai, i.e., outside the State of Karnataka, consigned by the consignors, i.e., M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings under section 28AA(4) and (5) of the Act by issuing a show cause notice to the appellant, to show cause as to why he be not assessed to tax as contemplated under section 28AA(4) of the Act and visited with penalty under section 28AA(5) of the Act for contravention of the provisions of section 28AA(2) of the Act. The appellant filed his reply to the show cause notice. The Check-post Officer, after affording a reasonable opportunity of hearing to the appellant and after considering several objections raised in the reply to the show cause notice, passed an order levying tax under section 28AA(4) of the Act and imposing penalty, as provided under section 28AA(5) of the Act, for contravention of the provisions of section 28AA(2) of the Act. Aggrieved against the order passed by the Check-post Officer, the appellant filed an appeal before the first appellate authority, as provided under section 20 of the Act. The first appellate authority by order dated July 22, 2003, allowed the appeal and remanded the matter to the Check- post Officer for a fresh decision in accordance with law and in the light of the observations made by the first appellate authority in the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of sub-section (3) of section 28A, upon interception of the goods vehicle after its entry into the State or after movement has commenced, as the case may be. (2) The driver or the person-in-charge of the vehicle shall deliver within the stipulated time a copy of the transit pass obtained under sub-section (1) to the officer-in-charge at the last check-post or barrier before his exit from the State. (3) If, for any reason, the goods carried in a goods vehicle are, after entry into the State, not moved out of the State within the time stipulated in the transit pass, the owner of the goods vehicle shall furnish to the officer empowered in this behalf the reasons for such delay and other particulars, if any, thereof and such officer shall after due enquiry extend the time of exit by suitably amending the transit pass: Provided that where the goods carried by a vehicle are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that the goods have actually moved out of the State shall be on the owner of the vehicle who originally brought the goods into the State. (4) If the driver or any other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (5) of section 28AA of the Act, against the appellant. The counsel for the appellant submits that under sub-section (5), the concerned authority can levy penalty of a sum not exceeding double the amount of tax leviable, and since the findings under section 28AA(4) had been set aside, the penalty could not be levied till the amount of tax leviable had been determined by the authority. He further contended that according to the Explanation appended to section 28AA of the Act, at the relevant time, the hirer of the vehicle would be deemed to be the owner of the vehicle for the purposes of levy of tax and penalty; whereas, in the present case, the penalty has been levied on the owner of the vehicle whose vehicle had been hired by the consignor, ignoring Explanation 1. To refute the aforestated contentions put forth on behalf of the appellant, the learned counsel appearing for the respondent submitted that the tax is levied under sub-section (4), whereas under sub-section (5), the words are "tax leviable" and there is a difference between the levy of tax and the leviability of the tax and, therefore, sub-sections (4) and (5) are not interlinked or interconnected; a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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