TMI Blog1993 (2) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... s and subsequently, the same was released on security. A show cause notice was issued under section 15-A(1)(o) of the Act and in response to show cause notice the assessee submitted a reply. It was stated that the goods had been purchased from Jodhpur under bill No. 2421 dated December 26, 1985 for Rs. 12,629.40. These goods were consigned to Bilari situate in district Moradabad, under G.R. No. 002901 dated December 26, 1985. Form XXXI No. NY-0492575 had also been enclosed with the G.R. It was stated that all necessary papers were produced at the check-post by the driver of the truck. The driver was not fully aware of the routes of the State and had no idea of the check-post located on the road. The papers were checked at the barrier of Rajasthan State and the same were passed. The driver had parked the bus by the side of road and in the meantime the Sales Tax Officer (Check-post) approached there. The driver showed all the papers to him and the same were found in order but in spite of verification by the check-post officer the goods were seized but released later on furnishing security of Rs. 5,200 on the ground that the driver had attempted to take away the goods without verifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (ii) rupees fifty, in the case of other goods; or (b) the quantity, measure or value notified by the State Government in that behalf, in connection with business, shall obtain the prescribed form of declaration on payment of the prescribed fee from the assessing authority having jurisdiction over the area where his principal place of business is situated or, in case there is no such place, where he ordinarily resides: Provided that where the importer intends to bring, import or otherwise receive such goods otherwise than in connection with business, he may, at his option, in the like manner obtain the prescribed form of certificate. (2) Where such goods are to be consigned by road,- (a) the importer shall furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him and the driver or any other person-in-charge of any vehicle carrying any such goods shall carry with him the copies of such declaration duly verified by the consignor in the prescribed manner together with such other documents as may be prescribed, and shall before crossing any check-post or barrier established under section 28, deliver one copy of such decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 15-A(1)(o) of the Act could not be imposed. The court held that the mere fact that the assessee did not produce form XXXI at check-post will not itself make him liable for imposition of penalty unless it is further established that the action of the assessee was an attempt to evade assessment or payment of tax due or likely to be due under the Act. In order that a case is covered within the mischief of sub-section (6) of section 28-A and the goods be detained by an officer making search, or inspection, it is necessary that the said officer must find out that the transportation was not covered by the proper and genuine documents and further, he is satisfied that those goods were transported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. The above two conditions are sine qua non for the application of section 28-A(6). In absence of any of the two requirements, no action can validly be sustained under the said provision. On these conditions being satisfied, the Sales Tax Officer is not only entitled to detain the goods under section 28-A(6) but he is further entitled to proceed under section 15-A(1)(o) which provides for imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption that society suffers injury by the act or omission of the defaulter and that a deterrent sentence must be imposed to discourage the repetition of the offence. In the case of a proceeding under section 271(1)(a), however, it seems that the intention of the Legislature is to emphasise the fact of loss of revenue and to provide a remedy for such loss, although no doubt an element of coercion is present in the penalty. In this connection, the terms in which the penalty falls to be measured are significant. Unless there is something in the language of the statute indicating the need to establish the element of mens rea, it is generally sufficient to prove that a default in complying with the statute has occurred. In our opinion, there is nothing in section 271(1)(a) which requires that mens rea must be proved before penalty can be levied under that provision." In R.S. Joshi, Sales Tax Officer v. Ajit Mills Limited [1977] 40 STC 497 (SC); AIR 1977 SC 2279, the validity of section 37(1)(a) of the Bombay Sales Tax Act, 1959, was challenged which provided that where the dealer collects any sum by way of tax in excess of tax payable by him, or otherwise collects tax in contraventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e due under the Act he may detain such goods. This provision contemplates that it has to be established that transportation of goods was in an attempt to evade assessment or payment of tax due or likely to be due under the Act. This provision has to be construed harmoniously with other sub-sections of section 28-A. In case it has to be established by the department before imposition of penalty that act of transportation by an assessee was an attempt to evade assessment or payment of tax due or likely to be due under the Act, the requirement to obtain necessary papers and to follow other formalities and requirement under section 28-A of the Act can be avoided by an assessee. The Legislature when imposes a duty upon the person who intends to import or transports any goods covered by section 28-A of the Act, he has to comply with the requirement mentioned under the said provision. Where it is necessary to obtain form XXXI before importation of goods and such form XXXI was not obtained, he commits a default and his action will be treated in violation of provision of section 28-A of the Act. If the law requires that a person should obtain necessary papers before transportation of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods in question were being transported from Jodhpur vide bill No. 2421 dated December 26, 1985. The driver of the truck was not fully aware of the Rules of the State and had no idea of the check-post on the road. When the driver was checked he had shown papers including form XXXI No. 0492075. The Check-post Officer verified the papers. The Tribunal recorded finding that the assessee furnished form XXXI No. 0492757 which was duly received from Meerut but as the said form was not shown at the check-post, the petitioner was liable to pay fine under section 15-A(1)(o) read with section 28-A of the Act. He took the view that as there was violation of provisions of the Act, the element of mens rea was not relevant. The view of the Tribunal is erroneous in law. The Tribunal has come to the conclusion that form XXXI was produced. Form XXXI was taken earlier before transportation of goods and if for some reason driver could not present form XXXI at the check-post it would not be taken that there was any violation of provision of section 28-A(2) of the Act. The explanation was given and that fully justified the claim of the applicant that there was no intention to evade the payment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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