TMI Blog2023 (12) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of Section 60(2). Section 60(4) (b) makes Section 56 applicable mutatis mutandis. Penalty is imposable under Section 56(4) (b) if the person in charge of the goods fails to satisfy the officer regarding the proper accounting of goods. The ingredients of Section 60(4) (b) read with Section 56(4) (b) are available in the instant case. There are absolutely no reason to interfere with the penalty imposed - petition dismissed. - HONOURABLE THE CHIEF JUSTICE K. VINOD CHANDRAN AND HONOURABLE MR. JUSTICE RAJIV ROY Appearance : For the Petitioner/s : Mr. S. D. Sanjay, Senior Advocate Mrs. Parul Prasad, Advocate Mrs. Priya Gupta, Advocate For the Respondent/s : Mr. Vikash Kumar, SC-11 ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) The petitioner engaged in the manufacture and sale of tyres, tubes and flaps is concerned with a penalty order passed under Section 60(4) (b) read with Section 56(4) (b) of the Bihar Value Added Tax Act, 2005 (hereinafter referred to as the Act ) after detention of a truck carrying goods at the integrated checkpost, Dhobi, Gaya. 2. The petitioner has a mother Warehouse situated at Patna and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of Bihar or for inter-State sale. 4. The learned Government Advocate, on the other hand, would rely on Guljag Industries v. Commercial Taxes Officer, (2007) 7 SCC 269 . It is argued that what comes out from the provision is a penalty for misdemeanor with civil liability and not necessarily one which is attracted only when there is mens rea and the intention is also not merely of deterrence. The learned Government Advocate points out that the invoice now produced with the number 002179 is one which was generated on the next day after the detention had occurred. The detention as is seen from Annexure-4 series was on 02.01.2015 at 01.05 a.m. at the integrated check post, Gaya. Subsequently generated document cannot prove the genuineness of the transport and the wrong invoice number noticed could very well have led to multiple transport being carried out on the basis of the stock transfer invoice, which could really be an inter-State sale. If the vehicle was not detained and not searched, then there could have been further transport carried out based on the very same quantity and value, thus, enabling the present consignment which was detained, to be sold inter- State, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter-State transactions they were not liable in any event for being taxed under the RST Act, 1994 and, therefore, penalty for contravention of Section 78(2) cannot be imposed. As stated hereinabove, declaration has to be given in Form ST 18-A/18-C even in respect of goods in movement under inter-State sales. It is for contravention of Section 78(2) that penalty is attracted under Section 78(5). Whether the goods are put in movement under local sales, imports, exports or inter- State transactions, they are goods in movement, therefore, they have to be supported by the requisite declaration. It is not open to the assessee to contravene and say that the goods were exempt. Without disclosing the nature of transaction it cannot be said that the transaction was exempt. In the present case, we are only concerned with the goods in movement not being supported by the requisite declaration. 31. We may mention some of the judgments cited on behalf of the assessees. Section 28-B of the Uttar Pradesh Sales Tax Act, 1948 came for interpretation before this Court in Sodhi Transport Co. v. State of U.P. [(1986) 2 SCC 486 : 1986 SCC (Tax) 410 : (1986) 1 SCR 939] In that case the constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 78(5) was leviable. After analysing the said section, this Court held that in the case of submission of false or forged documents/declaration, the authority was entitled to presume the motive to mislead the authorities. However, in such cases that presumption was rebuttable by the assessee on producing the requisite documents referred to in Section 78(2)(a). That, once the ingredient of Section 78(5) stood established after giving a hearing, there was no discretion with the officer to reduce the amount of penalty or to waive the penalty. If by mistake some of the documents were not readily available at the time of checking, principles of natural justice might require opportunity being given to produce the same. 33. In our view, the aforestated judgment in D.P. Metals [(2002) 1 SCC 279] has no application to the present case. We are not concerned in the present case with false or forged documents/declaration. In the present case the goods in movement were carried with the blank declaration Form ST 18-A/18-C which was duly signed by the assessee. Therefore, as stated above, we hold that the goods in movement were carried without the declaration Form ST 18-A/18-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rebuttable on the assessee producing the requisite documents, if by mistake some of the documents were not readily available at the time of checking. It was also held that once the ingredient of Section 78 (5) is established after an opportunity was afforded for hearing, then there is no question of reducing the amount of penalty or waiving it. 9. The facts in the aforesaid case has to be looked at with the declaration of law in Guljag Industries (supra) and D. P. Metals (supra), in mind. In the present case, there was a mistake in the invoice number as indicated in the declaration form which was accompanying the transport. A reasonable ground of attempt to carry out multiple transport arise, since if there was no checking at the check-post then there could have been a further transport made under the same invoice, thus, enabling an inter-State sale of the goods transported by the subject invoice and SUVIDHA Form, which could go unnoticed by the Department. Section 60(4) enables a seizure of goods along with the carrier if the authority suspects the transport to be in contravention of the provisions of Section 60(2). Section 60(4) (b) makes Section 56 applicable mutatis mutand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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