2009 (12) TMI 874

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....of the appellants and directed for refund of the amount of penalty collected by the check-post authority. The facts leading to the filing of the appeal are that the Commercial Tax Officer (hereinafter referred to as "the CTO"), (Mobile Check-post-4), Bangalore, intercepted goods vehicle bearing Regn. No. KA. 14.3025 on October 9, 2004 and issued a notice as to why penalty should not be levied on the appellant since the appellant attempted to evade the tax by not stopping the goods vehicle at Nelamangala check-post and obtained the seal thereof. The CTO on considering the statement of the driver found that the driver was guilty of violating section 28A(2)(d) of the Act and levied a penalty of Rs. 16,650, which has been paid under protest b....

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....facts and circumstances of the case, whether a checkpost Officer can levy penalty under section 28A(4) of the Karnataka Sales Tax Act, 1957 in respect of minor technical error for which sufficient cause is furnished? (3) In the facts and circumstances of the case, whether the respondent was justified in initiating the suo motu revisionary proceedings although the first appellate order, being an order setting aside a penalty order, was not prejudicial to the interests of Revenue? We find from the records that on July 18, 2008 this court has admitted the appeal by formulating the above referred two questions of law. We have heard Sri Aravind Kamath, learned counsel appearing for the appellant and Smt Geetha Menon, learned Government advoca....

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....g for the respondent-Revenue, would contend that it is not the question of evasion of tax or avoiding payment of tax but it is the violation of the mandatory provisions of section 28A(2)(d) of the Act, which attracts the levy of penalty and the question of establishing mens rea does not arise insofar as levy of penalty under this sub-section and accordingly, she submits that the revisional authority was fully justified in revising the order of the appellate authority and restoring the order of the CTO and she prays for dismissal of the present appeal and prays that the question of law be answered against the appellant and the appeal be dismissed. Having given our anxious consideration to the submissions made at the Bar, we find from the re....