TMI Blog2004 (4) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... legation that the applicant on October 8, 1987 imported twenty-five bales of Resham yarn and failed to get endorsement on form XXXI by the next following working day. The endorsement was obtained from the officer concerned on October 27, 1987. In reply it was submitted that 25 bales of Resham yarn was booked from Mughalsarai to Varanasi by Train No. 49 Up, the earliest available train and the entire lot of 25 bales so imported from Howrah to Varanasi remained in the custody of railway authorities right from October 7, 1987, the day on which the same was put on break van of Kalka Mail as the personal luggage at Howrah station and physical possession of the same was all along with the railway till actual delivery of the goods was taken in terms of the High Court's order. It so happened that the goods were seized by the Enforcement Department at Varanasi on the belief that the goods were of foreign made. Subsequently in pursuance of the order passed by this Court in a proceeding under section 482 of the Code of Criminal Procedure, 1898 the goods were ordered to be released. The Sales Tax Officer after taking into considering the entire facts and circumstances of the case passed the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of declaration form by any person who intends to bring, import or otherwise receive into State from any place outside the State any goods liable to tax. Sub-section (3) of section 28-A of the Act prescribes a procedure for submission of declaration form when such goods are consigned by railways, river, air or post. Sub-section (4) prescribes a procedure of submission of prescribed form, which is form XXXI when such goods are brought in the State of U.P. as personal luggage. On perusal of sub-section (4) two things emerges. The goods should accompany declaration in prescribed form (form XXXI) duly filled in and signed by the importer and secondly, the importer shall submit the same for endorsement by the officer, referred to in sub-section (3) by the next working day. The language of sub-section (4) is plain and simple and there is no ambiguity in it. However, Sri Saxena submits that this provision should be interpreted in such a manner that submission of form for endorsement by the next working day should mean the day when goods reached the destination of the importer, i.e., place of business of the importer, may be shop, godown, etc. Otherwise subsection (4) shall cause un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said." 8.. A division Bench of this Court in Bharat Pumps and Compressors Ltd. v. State of U.P. 1995 UPTC 256 in paras 7 and 8 of the report has made following observation with regard to the principle of interpretation of taxing statute: "7. It is now well-established, a taxing statute is to be strictly construed. A fiscal statute cannot be construed to tax on the doctrine of 'substance of matter', not even on the 'spirit of law' or by 'inference of analogy'. There cannot be equitable considerations or equity about a tax. Either he is within the fiscal statute or does not come. By inference, analogy, equity or sympathetic considerations the ordinary, normal, clear meaning of the words of statute should not be stretched. Viscount Simon quoted with approval passage from Rowlatt, J., which is to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91 SC 218 (220) (Sutlej Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal). Hence argument that since tax payable by petitioner in both cases is 4 per cent is unsustainable as it is based on possible inferences, analogy and on equitable considerations. This part, even if it could be said, petitioner could have been issued form III-B instead of form III-D, petitioner has to prove not only that goods purchased was for production but was a raw material within the meaning of section 4-B to be used for production for manufacturing notified goods. This would be in the realm of facts, which could only be appropriately decided in proceedings in pursuance of the impugned notice. Thus on this ground impugned notice could not be construed as jurisdictional error." 9.. Further Supreme Court in the case of Federation of Andhra Pradesh Chambers of Commerce and Industry v. State of Andhra Pradesh [2001] 247 ITR 36 at page 39 has made following observations: "A taxing statute is to be strictly construed. In the illuminating words of Lord Wensleydale and reaffirmed by Lord Halsbury and Lord Simon, 'the subject is not to be taxed without clear words for that purpose; and also that eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the facts and where there is no evidence of any dishonest or improper motive on the part of the assessee, it would be just and equitable to draw such inference in such a manner that would lead to equity and justice. Too hypertechnical or legalistic approach should be avoided in looking at a provision which must be equitably interpreted and justly administered." 13.. In the matter relating to the Central Excise Act (Easland Combines v. Collector of Central Excise, Coimbatore AIR 2003 SC 843 in para 15), it has been held that it is well-settled law that merely because the law causes hardship, it cannot be interpreted in a manner so as to defeat its object. It is also to be remembered that the courts are not concerned with the legislative policy or with the result, whether injurious or otherwise, by giving effect to the language used nor it is the functioning of the court where the meaning is clear not to give effect to it merely because it would lead to some hardship. It is the duty imposed on the courts in interpreting the particular provision of law to ascertain the meaning and intendment of the Legislature and in doing so, it should be presumed that the provision was designed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils to obtain endorsement within the prescribed time. The said argument has no merit. Supreme Court as far as back in the year 1977 in the case of R.S. Joshi, Sales Tax Officer v. Ajit Mills Limited [1977] 40 STC 497 (SC); 1979 UPTC 171 while interpreting the provisions of the Bombay Sales Tax Act rejected the theory of mens rea in taxing statute. The said judgment has been given by a Bench consisting of seven honourable Judges. It has been held that a classical view that "no mens rea no crime" has long ago been eroded and civil laws in India and abroad, specially regarding economic crime and departmental penalties have created several punishments even where the offences have been defined to exclude mens rea. In the case of Director of Enforcement v. Municipal Corporation Limited (1996) 1 JT 79 (SC) after quoting the following passage from Corpus Juris Secundum, Vol. 85, at page 580 expressed its agreement with the view expressed therein: "The penalty imposed for a tax delinquency is the civil obligation, remedial and coercive in its nature and it is far different from the penalty for crime or fine or forfeiture provided as punishment for violation of criminal or penal laws." 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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