TMI Blog2001 (1) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it was contended that the requisite documents had "inadvertently not been produced by the transporter" and along with that letter, the appellant produced the form No. 39. The appellant had contended that there was some urgency with regard to the consignment but effectively they had contended that the lapse in question should be condoned and enclosed copies of the sale invoice as proof of payment of xes along with the form No. 39. The department however held the appellants liable for penalty and imposed penalties of Rs. 18,704; Rs. 18,821; Rs. 16,242; Rs. 14,961 and Rs. 29,412, all the orders being dated April 21, 1995. 2.. The appellants preferred appeals against the order in question to the Deputy Commissioner of Commercial xes (Appeals), City Division-1, Bangalore. The appellants succeeded in the appeal but the revisional authority reversed this order on the ground that the appellate authority was in error in having set aside the orders imposing penalty. It is against his last order that the present appeals have been preferred. 3.. We need to prefix this order with the observation that we are tolly appreciative of the research done and the relevant case law that has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Orissa) wherein the Supreme Court had occasion to apply some of the finer points of the law and the Supreme Court did observe that unless it is demonstrated that there is a definite intention to evade the law, unless the conduct is contu- macious and unless the authority is satisfied that the party would have, but for detection achieved some illegal benefits a penalty would be unjustified. In other words to summarise the reasoning of the Supreme Court, the observations boil down to the aspect of the requirement of mens rea which concept is more applicable in criminal law and which would have some application in these situations. The learned counsel thereafter drew our attention to a decision reported in [1991] 83 STC 49 (Kar) [Prakash Roadlines (P) Ltd. v. Commis- sioner of Commercial xes in Karnaka] wherein once again, the judgment emphasised that the main aim of section 28-A is prevention of evasion of x. Our attention was then invited to another decision reported in [1993] 89 STC 524 (Kar) (Mahaveer Fancy Stores v. Commissioner of Commercial xes in Karnaka) wherein, in exten- sion of the law as laid down in the Hindusn Steel case [1970] 25 STC 211 (SC) the court observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t they must be tolly exonerated because he has raised two-fold contentions firstly that, admittedly the requisite documents did not accompany the consign- ments and therefore were not available for production at the Ballary road check-post where the vehicles were checked. It is his submission that this is a strict requirement of law, which cannot be by-passed, more so because the appellants themselves have admitted the non- production though they have contended that it was inadvertent. The second submission canvassed was that in the reply dated April 20, 1995 the appellants themselves have admitted their lapse and even though they have produced relevant documents within the permitted period of time that they themselves have requested the authorities to condone the lapse and ke a lenient view. He further submitted that he tolly opposes, on the facts of the present case, any situation in which the appellants can be tolly exonerated. As far as the main submission canvassed by him is concerned, what he contended was that where there is a duty cast on the party by law, to follow a cerin procedure and where there is a breach, that it is not permis- sible merely because corrective action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to highlight very strongly and effectively is that the letter and sprit of section 28-A must be understood to project that the section is mainly for enforcing compliance and that the penalty aspect is only undersndable and acts as a deterrent. Undoubtedly, unless an element of fear is intro- duced in so far as is necessary and unless the consequences of a breach turn into a penalty of sufficiently effective dimensions, there would be no real method of ensuring compliance. Once this view is understood and accepted, then, the two-fold submission canvassed by the learned Government Advocate would effectively demonstrate that the view canvassed by the appellants' learned counsel which is that subsequent production of the relevant document would tolly purge the initial lapse would not hold good. We need to qualify that this is not an absolute rule because the law itself has made provision for a small category of cases where the party concerned may be able to satisfy the authority that there was very just and valid cause for the lapse that has ken place and if the authority is satisfied from the material produced that this was the honest position, then only, the non-imposition of a pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the party or to the court to condone those and accept that there is compliance through means other than the manner which the law prescribes. Secondly, what cannot be lost sight of is the fact that it is not so much the question of where the goods have come from and where they are going or the description of the goods that the department is concerned with, but the other aspect namely, the question as to whether the goods have escaped xation and this last ingredient would cerinly not be ascerined from the material gate pass, which is the principal reason why we find it impossible to accept this submission. 8.. The appellants' learned counsel had submitted before us that the subsequent production of the documents in this case would be sufficient to obliterate the initial lapse and it was his submission that king into account all factors including the stus of the parties involved, this is not a case in which the revisional authority was justified in having interfered with the appellate order. What we need to observe is that, the learned counsel is justified in pointing out that the stus or track record of the parties is a relevant factor, but that is not an absolute parameter becau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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