ACT 11 OF 2003

THE KERALA GENERAL SALES TAX (SECOND AMENDMENT) ACT, 2003 [1]

An Act further to amend the Kerala General Sales Tax Act, 1963.

Preamble.--WHEREAS  it is expedient further to amend the Kerala General Sales Tax Act, 1963, for the purposes hereinafter appearing;

BE  it enacted in the Fifty-fourth Year of the Republic of India as follows:--

1.  Short title and commencement.--(1)  This Act may be called the Kerala General Sales Tax (Second Amendment) Act, 2003.

        (2)  Sections 2, 5 and 6 of this Act shall be deemed to have come into force on the 28th day of May, 2002, section 3 of this Act shall be deemed to have come into force on the 5th day of August, 2002 and section 4 of this Act shall be deemed to have come into force on the 29th day of July, 1996 and the remaining provisions shall be deemed to have come into force on the 24th day of April, 2003.

2.  Amendment of section 2.--In section 2 of the Kerala General Sales Tax Act, 1963 (15 of 1963)(hereinafter referred to as the principal Act),--

(1)  after clause (XVA), the following clause shall be inserted, namely:-- 

   "(XVB)  "notified goods" means, coffee, rubber, cardamom, ginger, pepper, arecanut, cashewnut, iron and steel and any other goods notified by the Government;".

(2)  after clause (xxiia), the following clause shall be inserted, namely:--

  "(xxiib) "smuggling" means transportation of goods without proper documents as specified in sub-section (1) of section 30E of the Act;".

3.  Amendment of section 7.--In section 7 of the principal Act, after sub-section (7B), the following sub-section shall be inserted, namely:--

"(7C)   Every awarder shall obtain from the contractor or assessee who is liable to tax under clause (iv) of sub-section (1) of section 5 and opted for payment of tax under sub-section (7) or (7A) of section 7 of the Act, a certificate issued by the assessing authority with regard to the tax liability excluding the turnover in respect of inter-state sale and import and shall deduct the tax due as per the said certificate at every time including advance payment and remit it to the Government on or before the fifth day of the succeeding month from the date of such deduction in the prescribed manner."

4.  Amendment of section 22.- In section 22 of the principal Act, in sub-section (1), after the words "pay over the same" and before the word "Government", the following words shall be inserted, namely :-

            "after giving set off to the entry tax, if any , already paid.".

5.   Insertion of new sections 30E and 30F.-In the principal Act, in sub-section (1), after the words "pay over the same" and before the word "Government", the following words shall be inserted , namely:-

     "30E. Confiscation by authorised officers of notified goods, vessel or vehicle in case of smuggling .- (1) Notwithstanding anything contained in this Act, the owner or other person in charge of a vehicle or vessel while transporting into or out of the State, coffee, rubber, cardamom, ginger, pepper, arecanut, cashewnut, iron and steel and any other goods notified by the Government, the value of which exceeds  rupees two thousand and five hundred or such amount as notified by the Government from time to time, shall carry with him in addition to the documents prescribed under section 29 of the Act, a permit issued by the officer empowered in  this behalf or the assessing authority, as the case may be, in the prescribed form.

Note:--If  the transport  of  notified  goods  is  not  accompanied  by  the documents    

specified in sub-section (1) above, it shall be deemed to be smuggling of the notified goods for the purposes of the Act.

              (2)  Any officer authorised by the Government in this behalf shall have the power to intercept and search the vehicle or vessel or any conveyance referred to in sub-section (1), at any place within the State for the purpose of enabling such officer to verify whether any notified goods are being transported in contravention of sub-section (1).

   (3)  If on verification, such officer has reason to suspect that the notified goods are being transported in contravention of the provisions of sub-section (1), he may without any unreasonable delay, produce the goods and the vehicle before such officer authorised by the Government by notification in the Gazette, not below the rank of an Inspecting Assistant Commissioner.

   (4)  Where the authorised officer is satisfied that the driver or other person in charge of the vehicle or vessel transported the notified goods in contravention of sub-section (1), or the documents produced are false or reasonably suspected to be false in respect of the particulars furnished therein, the authorised officer shall have the power to seize and detain the notified goods along with vehicle or vessel:

  Provided that before taking action of seizure and detention, the authorised officer shall give the person in charge of the notified goods and the owner of the notified goods, if ascertainable, and to the owner of the vehicle or vessel a notice in writing informing him the reason for the seizure and detention and an opportunity of being heard:

  Provided further that the authorised officer may release the notified goods and the vehicle or vessel seized and detained, if the owner or the person in charge of the notified goods or owner or person in charge of the vehicle or vessel files an option to pay in lieu of seizure and detention, a penalty equal to thrice the amount of tax due at the rate applicable to the goods liable to seizure and detention and twice the amount of tax due or an amount of rupees fifty thousand whichever is higher for the release of the vehicle or vessel in lieu of detention:

  Provided also that if the owner of the vehicle or vessel produces the permit prescribed in sub-section (1) and the owner of the notified goods proves the bonafides of the transport of goods within seven days of the seizure and detention, the authorised officer shall release the goods and the vehicle.

(5)  Notwithstanding anything contained in the foregoing provisions, if the owner or person in charge of the notified goods or the owner or person in charge of the vehicle fails to prove the genuineness of the transport of the goods or to remit the penalty as specified in the second proviso to sub-section (4) within 30 days from the date of seizure and detention of goods and the authorised officer has reasons to believe that the owner or the persons in charge of the vehicle or vessel has transported the notified goods to evade payment of tax with the knowledge or connivance of the owner of the goods, the authorised officer may confiscate the vehicle or vessel along with the notified goods.

(6)  No order confiscating any vehicle or vessel shall be made under sub-section (5), if the owner or the person in charge of the vehicle or vessel proves to the satisfaction of the authorised officer that it was used for carrying the notified goods without the knowledge  or connivance of the owner himself, his agent, if any, or the person in charge of  such vehicle or vessel and that each of them has taken all reasonable and necessary precautions against such use:

Provided that the authorised officer shall serve notice to the owner of the vehicle or vessel or the person in charge of the vehicle or vessel or the owner of the notified goods, if ascertainable, intimating the reason for the confiscation of the vehicle or vessel and an opportunity of being heard.  The authorised officer shall also afford an opportunity to pay a penalty equal to thrice the amount of tax attempted to be evaded by the owner of the goods and rupees one lakh by the owner or person in charge of the vehicle or vessel in lieu of confiscation of vehicle.  If the owner of the notified goods is not ascertainable or not willing to remit the penalty specified, the owner of the vehicle or vessel or the person in charge of the vehicle or vessel shall pay thrice the amount of tax sought to be evaded and an amount of rupees one lakh in lieu of confiscation of the notified goods and vehicle or vessel.

(7)  The permit referred to in this section shall be obtained either from the officer empowered to in this behalf in the border checkpost or from the assessing authority, as the case may be, for the transport of notified goods into or out of the State.

(8)  Any person aggrieved by an order under sub-section (6) may, within thirty days from the date of communication to him of such order, file an application for revision, in such manner and in such form, as may be prescribed and accompanied by a fee of rupees five hundred before the Deputy Commissioner and the Deputy Commissioner may pass such orders thereon as he think fit:

Provided the Deputy Commissioner may admit an application for revision filed after the expiry of the said period, if he is satisfied that the applicant had sufficient cause for not filing the revision within the said period.

(9)  Any person aggrieved by an order under sub-section (8) may within thirty days from the date of communication to him of such order, file a revision in such manner and in such form as may be prescribed and accompanied by a fee of rupees five hundred before the Commissioner and the decision of the Commissioner shall be final:

Provided that the Commissioner may admit an application for revision filed after the expiry of the said period, if he is satisfied that the applicant had sufficient cause for not filing the application within the said period.     

(10)  Where an order of confiscation under this section has become final in respect of any goods, vehicle or vessel, such goods, vehicle or vessel, as the case may be, shall vest in the Government free from all encumbrances.

(11)  the award of confiscation under this section shall not prevent the infliction of any punishment to which the person affected thereby is liable under the Act.

30F. Procedure as to perishable goods seized under section 30E.--(1) Not-withstanding anything contained in section 30E, the authorised officer may direct the sale of any goods seized under that section which is subject to speedy and natural decay and remit the sale proceeds into the Government Treasury.

  (2)  The authorised officer may deal with the proceeds of the sale of goods under sub-section (1) in the same manner as he might have dealt with the goods, if it had not been sold.

6.  Amendment of section 31.--In section 31 of the principal Act, after clause (ii), the following clause shall be inserted, namely:--

  "(iii)  Any person who undertakes to transport or deliver any consignment of notified goods in any vehicle or vessel or any other conveyance exceeding the value of rupees two thousand and five hundred or such amount as notified by the Government from time to time, shall have a permit obtained from the authority as prescribed in sub-section (7) of section 30E.".

7.  Repeal and savings.--(1)  The Kerala General Sales Tax (Amendment) Ordinance, 2003 (4 of 2003) is hereby repealed.

  (2)  Notwithstanding such repeal, anything done or any action taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or take under the principal Act as amended by this Act.