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2012 (7) TMI 873 - HC - VAT and Sales TaxLevy of penalty u/s 45[2][c] & 45 [6] of Gujarat Sales Tax Act, 1969 - Intention to evade tax - Held that:- The appellant has exported under Duty Entitlement Pass Book (for short DEPV) which was not taxable as goods at the time of filing the return, though the sales were recorded in the books of account as tax free. DEPV was same as REP licenses. They were treated as goods in view of decision in Yasha Overseas (2008 (5) TMI 43 - SUPREME COURT ). In either of the scheme, the licenses are known as DEPB. The Hon'ble Apex Court has held that the nomenclature may be different in different schemes but they are one and the same scheme considered within the definition of goods. - Prior to the decision in the case of Yasha Overseas V/s. Commissioner of Sales Tax and Others (2008 (5) TMI 43 - SUPREME COURT ) these goods were non-taxable but after the Hon'ble the Apex Court clarified the liability, they have become taxable. Therefore, there was no intention of the assessee to avoid payment of tax deliberately. Appellant was litigating under the bonafide belief that the goods exported were exempted from payment of Sales Tax and for the first time, the goods become taxable after the decision of the Hon'ble the Apex Court in the case of Yasha Overseas V/s. Commissioner of Sales Tax and Others (2008 (5) TMI 43 - SUPREME COURT ) and thereafter, the appellant deposited the tax interest and penalty - penalty could not have been imposed on the appellant and that there was no intention of the appellant to evade the payment of Sales Tax - Decided in favour of assessee.
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