TMI Blog2009 (2) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... lf to be consignor of the goods in question on the ground that the goods were being transported along with the relevant forms and documents but due to inadvertent mistake of the concerned clerk few columns of the said Form-38 were not filled up. Reference of Form-38 was given in the invoice, besides the plea that the goods were accompanied with cash memo, bill, invoice, Challan and trip sheet etc. The said reply did not find favour with the authority concerned who after rejecting the case of the applicant, reached to the conclusion that the leaving column Nos. 2, 3 and 6 blank was the deliberate action of the consignor. The theory of clerical mistake as set up in reply to the show cause notice was rejected and it was held that the material columns of Form-38 were left blank deliberately and designedly. A cash security of ₹ 2,20,000/- was demanded as a condition for the release of the detained goods. The said detention order passed by the Mobile Squad was confirmed in appeal No. 366 of 1997 by the Appellate Authority and in second appeal No. 28 of 2009 by the Tribunal by the order impugned in the present revision. In the memo of revision the following questions of law have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, in the aforestated cases, though under the Rajasthan Sales Tax Act, blank form or incomplete form per se entails the penalty provision and such person who has been found importing the goods in a State on the basis of blank forms or not duly filled forms is liable to pay penalty under the Sales Tax Act. He further submits that the two authorities below have found that this was a deliberate attempt on the part of the applicant to evade the payment of tax. The findings recorded by them are essentially findings of fact which are liable to be upheld in view of the limited jurisdiction by this Court while hearing the present revision. 6. Considered the respective submissions of the learned Counsel for the parties and perused the record. It is an admitted position that the consignee of the goods in question though noticed by the authorities concerned, has not come forward nor has participated in the present proceedings. The applicant is the consignor of the goods in question who is contesting the present matter. An objection in this regard was raised by the department before the Tribunal, but the Tribunal held that the appeal filed by such a person like consignor is maintainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission at this stage that the unfilled/blank columns are not material part of the Form, ex facie is liable to be rejected. It was argued that the said details can be gathered from the cash memo/bill accompanied with the goods. Even if the desired information could be gathered from the accompanying documents, it does not follow that those informations should not be incorporated in the Form-38 or the columns relating to those informations are not material, otherwise the very purpose and object of prescribing the Form-38 would be frustrated. It may be mentioned here that the Form-38 has been prescribed to prevent the evasion of tax and to protect the honest dealers so that they may compete with the dealers who indulge in the activities outside the books. Form-38 is issued by the officer of Commercial Tax Department to the dealer registered under the VAT Act for forwarding the same to the consignor who dispatches the goods to a dealer in the State of U.P. The cash memo/bill is a private document and it can be replaced by the parties conveniently on mutual understanding for their benefit. To prevent such activities, Form-38 has been prescribed. It will not be out of place to mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the said goods were not accompanied by the requisite documents or that the documents accompanying them were false. This power can be exercised only if the goods detained are not accompanied by the requisite documents or that the documents accompanying them are false and if there is material before the detaining authority to indicate that the goods are being imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. The instant case, therefore, in our opinion, clearly falls outside the ratio of the case of Check Post Officer vs. K.P. Abdulla Bros., 27 STC 1 as decided by the Supreme Court. 11. The said observation should be read and understood in the context of the subject. It cannot be torn and read out of the subject. The aforesaid observations have been made by the Court with reference to Section 28-A as it then stood while considering the constitutional validity of the said provision. The Court was not called upon to decide as to what would happen if the said declaration form is absent or is not duly filled in. While upholding the validity of Section 28-A as it then stood, it was observed that power under Section 28-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods not described in the Schedule-I the goods shall accompany the prescribed form of declaration. It is not the case of the applicant that the goods which he intended to bring in the State of U.P. falls within the descriptions of goods of Schedule-I. This being the position, it is difficult to accept the argument of the applicant that it is not necessary to carry the prescribed form of declaration while importing any goods from any place outside the State of U.P. The decision given in Jain Sudh Vanaspathi Limited (supra) should be understood in the light of the legal provision as it then stood. The legislatures have consciously amended law to plug the loophole of Section 28-A for the purposes of preventing the evasion of tax. Whatever may be the legal position earlier, law as stands today, is clear and on a plain reading of Section 50 of the VAT Act, it cannot be possibly said that absence of Form-38 is immaterial. 13. The use of word shall in sub-section (1) of Section 50 of the VAT Act further fortifies the above view. This disposes of the question No. 14. The other limb of the argument is that sub-section (4) of Section 50 of the Act does not authorizes an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purchaser and seller of the goods. Duly filled means that the document is filled up in all respects. Omission of bill number, its date, weight of goods and the quantity of goods are the relevant information to enable the Assessing Authority to frame the assessment order and by leaving these columns blank in Form-38, it cannot be said that the form was duly filled up. The authorities below have found that these columns were left blank intentionally. 16. The learned Counsel also referred the Rules 53(iii) of Rajasthan Sales Tax Act as reproduced in the case of Bajaj Electrical Vehicles Ltd. (supra) (See pages 326 and 327 of the report) and contents that therein the requirement was that declaration form should be completely filled in all respects which is not so under the Rule 53 of the VAT Act. The requirement as prescribed under Section 50(4) of the VAT Act is that the goods should be covered by proper and genuine documents. Rule 54(1)(i) prescribes only this much that the prescribed form should be duly filled. In my considered view the distinction pointed out by the learned Counsel for the applicant is distinction without there being any distinction. The words duly fille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haps due to oversight, the other necessary condition if such goods were being so transported in an attempt to evade assessment or payment of tax due or likely to be due under this Act , joined with the first condition by the word and . Thus under Section 50(4) the goods cannot be detained unless both the conditions are satisfied i.e. (i) Where the officer making the search or inspection under this section finds any person transporting or attempting or abetting to transport any goods to which this section applies without (Continued on next page)' genuine documents referred in the Statute means the document should be complete in all material respects besides being genuine. A conjoint reading of Section 50(4) with the Rules 54 and 55(3) makes the position clear. Sub-rule (3) of Rule 55 which deals with inspection of goods in transit provides that the Officer if finds on examination or has reason to believe that the requisite documents are false, bogus, incorrect and incomplete or invalid, entitles the officer to issue a show cause notice to the driver or the person in charge of the goods seeking a reply as to why the goods should not be seized. If the officer is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court recently in the case of 9[Guljag Industries (supra)] has made the following observations:- 9. Existence of mens rea is an essential ingredient of an offense. However, it is a rule of construction. If there is a conflict between the common law and the statute law, one has to construe a statute in conformity with the common law. However, if it is plain from the statute that it intends to alter the course of the common law, then that plain meaning should be accepted. Existence of mens rea is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals. A penalty imposed for Editor's Note: (i) imports or attempts to import or abets the import of any goods, in contravention of the provisions under section 50 or section 51 with a view to evading payment of tax on sale of - (a) such goods; or (b) goods manufactured, processed or packed by using such goods; or (ii) transports, attempts to transport any taxable goods in contravention of any provisions of this Act; [9] The decisions of Apex Court in Guljag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security amount under the aforesaid section. The cases, thus, relied upon by the applicant relating to levy of penalty, at this stage are irrelevant. 22. Shri Kunwar Saxena, Advocate, who is a very seasoned Counsel, could not place even a single case law either of this Court or of Apex Court, relating to seizure and detention wherein it has been held that mens rea is sine qua non in respect of an order of detention. 23. No argument was advanced in respect of question No. 3. Even otherwise also the applicant is not a registered dealer nor it has a place of business in U.P. In the absence of any material it does not deserve any relief. 24. Before saying omega to the case a recent pronouncement of the Apex Court in Assistant Commercial Tax Officer vs. Bajaj Electrical Vehicles (2009) 1 SCC 308 wherein it has reiterated its earlier view taken in Guljag Industries Ltd. (supra), be noticed. The said judgment of the Apex Court is with respect to Rajasthan Sales Tax Ac t, a cognate Statute. In this case the Supreme Court in para 9 of the report has made certain general observations to the effect that the State is loosing Revenue on account of consignee s failure to supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue. 26. Last but not the least, it may be noted that the present revision has been filed under Section 58 (wrongly mentioned as Section 81) of the VAT Act which provides that the High Court can interfere in the order on the ground if the case involves any question of law. The authorities below have found that the declaration form was not duly filled and some of the columns were left blank deliberately. The material columns which relate to the weight of the goods, quantity and number date of bill have been left blank which shows the intention of the applicant to use the said declaration form again and again. 10[A specific finding has been recorded that the columns were left blank Editor's Note: [10] The decision of Hon ble High Court is based upon the considered opinion of Tribunal that there was intention to evade tax. As such the confirmation of Seizure clearly comes into the ambit of provisions of Section 50(4) of the U.P. VAT Act, 2008 in which mens rea of tax evasion has been prescribed as an essential condition for the seizure of the goods not accompanying proper and genuine Form 38. intentionally. The intention to evade the payment of tax is implicit as is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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