TMI Blog2015 (10) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... document, in this case as the declaration form ST-18-A, was furnished with the reply to show cause notice, it ought to have sufficed. Aside of aforesaid, it is not in dispute that the goods in transit were in the course of stock transfer from petitioner's factory at Aurangabad to its branch at Jaipur and a case of tax evasion could not be made out. The Assessing Officer or for that matter the Appellate Authority and the Tax Board have not held that the goods were not being transported under a branch transfer and have yet based their judgment on a purported intent to evade tax. The allegation of intent to evade tax was palpably facetious, the declaration in form ST-18-A having been submitted with the reply - order of the appellate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had not received form ST-18-A when the goods were despatched from Aurangabad. In the circumstances, a show cause notice was issued to petitioner company prima facie finding a contravention of Section 78(2) of the 1994 Act read with Rule 53(1) (a)(ii) of the Rules. Reply to notice along with declaration form ST-18-A bearing No. 22164/16 was filed by the petitioner company. It was also stated in the alternative that the goods were under branch transfer from the petitioner company's factory to its branch office at Jaipur and hence in any event the declaration form ST-18-A was not required to accompany the goods in transit in any way as in the context of transaction no evasion of tax was conceivable. It was prayed that in the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity to the assessee to produce the same. and on submission of such documents, if not forged or fabricated, penalty cannot be levied. He submits that the judgment of the Hon'ble Supreme Court in the case of D.P. Metals (supra) has been since followed consistently in various judgments such as ACTO vs. Lloyd Electric and Engg. Ltd. [2011-15 VAT Reporter 40 (HC)], ACTO vs. Kiran Global Cams Piplag [2011-16 VAT Reporter 225 (HC)], Cera Tech India vs. ACTO [2013-35 Tax Update 49 (HC)], ACTO vs. Tata Iron Steel Co. Ltd. [2013-35 Tax Update 249 (HC)]. He submits that the Tax Board has inexplicably and wrongly construed the judgment of the Hon'ble Supreme Court in the case of D.P. Metals (supra) in holding that non-accompaniment of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of penalty under Section 78(5) of the 1994 Act. 4. Heard. Considered. 5. The ratio of the judgment in the case of D.P. Metals (supra) is clear. It is that where goods in transit are found to be unaccompanied by any material document required under Section 78(2) of the 1994 Act, on show cause notice being issued in respect therefor if such document is supplied filling up the lacuna, no penalty would be leviable. The Hon'ble Supreme Court has not defined the nature of mistake which alone would be rectifiable by submitting the required documents with the reply to show cause notice. As long as the missing document, in this case as the declaration form ST-18-A, was furnished with the reply to show cause notice, it ought to have suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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