TMI Blog2014 (9) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... esh is shown or described as "self" unless the particulars and address of the person who delivery of the goods at the declaration in Madhya Pradesh and furnished. A bare reading of two provisions would show that the intention of the Legislature is to make them mandatory. Therefore, after, the enforcement of section 45A it is mandatory for every person or transporter who is transporting the goods to deliver to the check-post officer a declaration duly signed by the consignor as has been prescribed. Irregularity that was detected when both the vehicles were checked. It is not in dispute in both the writ petitions that the declaration required under form Nos. 75 and 85 were not produced by the transporter when the goods were seized that being so, the check-post was well within his right in taking action. However, while taking action the competent authority of the check-post the revisional authority proceeded on an assumption that the declaration under form Nos. 75 and 85 was not produced and the intention to facilitate evasion of tax was presumed due to non-production of this statutory form in the check-post. The presumption was drawn in the matter of evasion of tax without taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r,. ORDER:- The order of the court was made by P.K. JAISWAL J.- Since the common question of law is involved in both the petitions and, therefore, they are being disposed of by this order. In W.P. No. 1192 of 2005, the petitioner is challenging the order dated February 26, 2005 and in W.P. No. 1194 of 2005, the petitioner is challenging the order dated February 26, 2005, annexure P/9, passed in Revision Nos. 16/04 and 17/04 by which the order passed by the Assistant Commissioner, Commercial Tax, in Penalty Case Nos. 48/03-04 with respect to vehicle No. M.P. 09-KB-0817 and Penalty Case No. 49/03-04 with respect to vehicle No. M.P. 09-KB-2195 has been confirmed and both the revision petitions filed by the petitioner were dismissed. The brief facts of the case are that the petitioner is a transporter engaged in the business of transportation of goods. That certain consignment contending various consumer goods were loaded at Bombay in two trucks bearing Registration Nos. M.P. 09-KB-0817 and M.P. 09-KB-2195. The goods loaded in the truck were consigned by various parties for delivery to M/s. Hindustan Lever Ltd. at different places. Part of the goods were to be delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration No. 75 form before the checkpost officer and 3 (three) declaration forms with regard to form No. 85. It is further submitted by the petitioner that builty No. 301795 dated May 26, 2003 for ₹ 2,52,883 in form No. 75 had already submitted which is available on record and prayed that no penalty can be imposed. It is also submitted in the reply that non-furnishing and furnishing incorrect declaration was merely an inadvertant error without any ulterior motive and there was no intention of facilitating the evasion of tax. The defect/default was merely a technical/venial breach without any intention of evasion of tax because except the declaration in question all other information and documents were available with the consignments in the shape of other documents like invoices, bilties, challan, etc. Moreover, the accompanying documents contained all the information that was required to be filled in the requisite prescribed forms. The petitioner furnished all the necessary declarations and requested the check-post authority to drop the penalty proceedings after taking the said declaration on record. Respondent No. 1 again imposed the penalty under section 45A(12) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional authority. It is also submitted that the check-post officer while passing the order dated September 1, 2003 recorded a finding of fact that the conduct of the petitioner does suggest that the petitioner was trying to facilitate the evasion of tax. It is also submitted that the mens rea can be presumed by the conduct of the petitioner at the first stage as he has failed to produce the requisite number of form numbers 75 or 85 before the check-post officer. It is also submitted that some of the forms were incorrectly submitted by the petitioner which means instead of form No. 75, the petitioner submitted form No. 85. In respect of a submissions of wrong forms, according to the respondents, the purpose and object of form Nos. 75 and 85 are altogether different, because form No. 75 is described for importing goods within the State, whereas, form No. 85 describes about out to out transaction. In case of form No. 85, there is no need to provide the information about the registration number to consignee whereas in form No. 75, the registration number of consignee is necessary, so the exigibility of tax can be ascertained from the consignee of Madhya Pradesh. It is further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003: Relating to Truck No. MP 09 KB 0817 S.No. Form No. and date M.T.R. No. and date Value 1. Form No. 75 13781 2,52,883.38 2. Form No. 75 4254 44,859.60 26.05.03 4254 45,325.22 26.05.03 4254 1,10,857.07 26.05.03 4254 3,13,712.18 26.05.03 3. Form No. 85 13780 5,29,575.94 26.05.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under sub-section (5) every transporter shall, before crossing any check-post or barrier set up or erected under sub-section (1), deliver to the check-post officer a declaration duly signed by the consignor in such manner, in such form and containing such particulars as may be prescribed. A separate declaration shall be filed in respect of the consignment or consignments relating to each consignee where the goods are being imported into Madhya Pradesh and of each consignor where the goods are being sent outside the State. No declaration in relation to goods to be delivered in Madhya Pradesh shall be accepted if the consignee in Madhya Pradesh is shown or described as self unless the particulars and address of the person who delivery of the goods at the declaration in Madhya Pradesh and furnished. A bare reading of two provisions would show that the intention of the Legislature is to make them mandatory. Therefore, after, the enforcement of section 45A it is mandatory for every person or transporter who is transporting the goods to deliver to the check-post officer a declaration duly signed by the consignor as has been prescribed. From the aforesaid, it is also clear that befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of imposing penalty. Taking us through the reasons indicated by the revisional authority, and the assessing authority, he submitted that action of the respondents in the present case is not just fair and reasonable, and therefore, he seeks for interference in the matter. Ms. M. Ravindran, Deputy Government Advocate taking us through section 45A of the Act and other documents available on record emphasized that once a breach, statutory in nature is established, imposition of penalty is the discretion of the competent authority and the discretion having been exercised on the statutory breach proved, this court is not required to interfere in the matter. It is not disputed by her that after passing of the order in writ petition when the petitioner received show-cause notice they filed their reply and filed declaration form Nos. 75 and 85. She also submitted that the petitioner deliberately filed wrong declaration, i.e., declaration No. 85 instead of declaration 75 and, therefore, learned authorities have not committed any error in passing the impugned orders and prayed for dismissal of the writ petitions. In the present case, the irregularity that was detected when both the veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. . . If the facts and circumstances of the present case are evaluated in the backdrop of the aforesaid principles laid down by the Supreme Court in the case of matter of imposition of penalty, it would be seen that in the present case, penalty has been imposed mechanically without any dishonest intention or malice or mens rea having been established or proved. The bona fide reason given by the company explaining the circumstances in the matter of non-availability of from No. 75 is not at all considered by the authorities concerned while imposing the penalty. Imposition of penalty has penal consequence. Penalty is a mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08] 13 STJ 255 (SC) held (pages 635 and 636 in 124 STC): 30. . . . Firstly, if there is non-compliance with section 78 (2) (a), i.e., not carrying the documents mentioned in that sub-clause or, secondly, if false or forged documents or declaration is submitted. This sub-section cannot relate to personal belongings which are not meant for sale but would relate to those types of goods in respect of which documents referred to in section 78 (2) (a) exist or can exist. 31. Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under section 78(5) if the requisite documents referred to in sub-clause 2(a) are not produced, even though the same should exist, would clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in section 78(5) can be regarded as technical or venial. Once the ingredients of section 78(5) are established, after givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter and imposition of penalty that discretion must be reasonably exercised. Following the aforesaid principles, this court holds that the imposition of penalty in the facts and circumstances of the case is not a proper exercise of the discretion by the authority concerned. The authority who has passed the orders has not acted in accordance with law and exercised its discretion in the manner which cannot be approved. Considering the totality of the facts and circumstances of the case and keeping in view the principles, which governed the imposition of penalty as indicated hereinabove, both the petitions are liable to be allowed. The impugned orders passed by the assessing authority dated September 1, 2003 and revisional authority, Additional Commissioner dated February 26, 2005 as contained in (annexure P/9) are quashed. In the result, both the writ petitions are allowed and disposed of, without any orders as to cost. Copy of this order be kept in other connected matter. W.P. No. 1194 of 2005 Shri P.M. Choudhary, advocate for the petitioners. In view of the detailed order passed in W.P. No. 1192 of 2005, this petition also stand allowed and disposed of. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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