TMI Blog2014 (3) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... d by using such goods etc. Mere contravention of Section 50 or 51 but without any intention to evade tax would not attract penalty - Before imposing penalty, authority concerned has to record a finding either on the basis of material before it or produced by the dealer or any other person or the Department, which may include incomplete form 38 that there was an intention to evade payment of tax - The order of the Tribunal upheld - Decided against assessee. - Sales/Trade Tax Revision No. - 267 of 2014, Sales/Trade Tax Revision No. - 268 of 2014, Sales/Trade Tax Revision No. - 269 of 2014, Sales/Trade Tax Revision No. - 270 of 2014, Sales/Trade Tax Revision No. - 271 of 2014, Sales/Trade Tax Revision No. - - - Dated:- 12-3-2014 - Hon'ble Sudhir Agarwal,JJ. For the Applicant : Shubham Agrawal, Bharat Ji Agrawal, Parv Agrawal For the Respondent : C.S.C. ORDER 1. In all these revisions, which have arisen from the orders of Tribunal, since common questions of law have been raised, pressed and argued, therefore, all are being decided by this common judgment. 2. Heard Sri Bharat Ji Agrawal, Senior Advocate, assisted by Sri Shubham Agrawal, Advocate, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Tribunal, in a detailed manner, has discussed modus operandi, in which From 38 issued to assessee, could have been used repeatedly, in respect to various different transactions, if Column 6 is left blank, hence keeping Column 6 blank in Form 38, was a deliberate act on the part of assessee, and not a clerical mistake or indeliberate or unintentional error on the part of transporter or sender of goods and this being in contravention of Section 50/51 of Act, 2008, penalty has rightly been imposed upon assessee. 6. In order to appreciate rival submissions, it would be necessary to understand legislative intent and objective behind issuing Form 38, which has to be filled in and carried by transporter while importing goods in State of U.P. 7. Sections 50 and 51 of Act, 2008 deals with goods, where a person imports certain goods into the State of U.P., either by road or by rail or other mode of transportation. Section 50(1) and (2), which are relevant for the purpose of present case and Section 51 of Act, 2008 read as under: 50. Import of goods into the State by road against declaration-(1) Any person (hereinafter in this section referred to as the importer) who intends to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce transports any goods by rail, river, air or post, such courier shall not obtain or cause to be obtained delivery thereof unless the dealer, importing goods, furnishes or causes to be furnished to such officer, as may be authorized in this behalf by the Commissioner, a declaration in the prescribed form referred to in clause (a) of sub-section (2) of section 50, in duplicate duly filled in and signed by him for endorsement by such officer. The courier service, after taking delivery of goods from rail, river, air or postal authority, shall carry such duplicate copy of form of declaration alongwith goods and shall deliver to the dealer alongwith goods. (2) Where any taxable goods are brought into the State by rail, river or air as personal luggage, the person bringing them shall carry with him the prescribed form of declaration duly filled in and signed by the importer, and the importer shall submit the same for endorsement by the officer authorised under sub-section (1) by the next working day. (3) Where any person intends to bring, or receive into the State, from any place outside the State by rail, river, air or post any taxable goods otherwise than in connection with busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2008 (hereinafter referred to as Rules, 2008 ) provides that owner, driver or any other person-in-charge of the vehicle or vessel shall carry with him the documents mentioned in Clause (i) and (ii) thereof, when importing goods referred to in sub-section (1) of Section 50. 10. Clause (i) and (ii) of Rule 54(1)(a) of Rules, 2008 read as under: (i) form of declaration for import in Form XXXVIII or certificate in Form XXXIX hereinafter in these rules referred to as declaration or certificate, as the case may be, in duplicate, duly filled and signed by the purchaser and seller of the goods or where goods are transferred otherwise than by way of sale, by consignor consignee of the goods with status and address ; (ii) Cash memo, bill, invoice or challan; (emphasis added) 11. Form 38, therefore, which has to be carried by driver of the vehicle/Importer of the goods, is required to be duly filled in and signed by purchaser and seller of goods or, as the case may be, by consignor and consignee. 12. Rule 56 talks of declaration forms in respect to goods referred in sub-section 1 of Section 50 of Act, 2008, which shall be sent to the selling dealer or consignor of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on form and signed by the parties. However, this by itself may not be sufficient to attract penalty provision under Section 54 of Act, 2008, as will be discussed herein below, including as to what other requirement of statute is for attracting penalty provisions. 14. Then there is a procedure for maintaining accounts, details of the form issued and subsequently received by Assessing Authority. Section 54 of Act, 2008 talks of penalties in certain cases.. Here, in the case in hand, we are concerned with Clause 14 thereof which reads as under: Sl. No. Wrong Amount of penalty 14. Where the dealer or any other person, as the case may be, -(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; 40% of value of goods. (emphasis added) 15. A penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, the Assessing Officer has also found that Form-38 in question was not signed by Consignor and it shows that it was not filled in by Consignor, but by Assessee itself, who left Column 6 blank deliberately. Assessing Authority from the discussion made in the impugned order, some of which are referred to hereinabove, formed an opinion that turnover of sale or purchase or both declared by Dealer is not worthy of credence and thereby assumed jurisdiction for making provisional assessment and has passed the order appealed before First Appellate Authority. This decision has also been referred to and followed in M/s JSW Steel Ltd. Vs. Commissioner, Commercial Tax, 2014 UPTC 277. 19. In the present case, Tribunal has given its reasons to demonstrate as to how there could have been evasion of tax and therefore, keeping column 6 of Form 38 blank, intention on the part of importer to evade tax had to be inferred. The findings recorded by the Tribunal in this regard reads as under: The appellant trader has, nowhere in his reply, put forth any fact helpful to him, on the basic of which it can be ascertained that Form - 38 cannot be used again. The goods being imported are not su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olumn in Form 38 blank and still this Court has held imposition of penalty unjust or illegal. 24. Now I come to the authorities cited at the bar, in favour of Assessee. In Commissioner of Commercial Tax Vs. M/s Krishna Brothers, VSTI 2013 (Vol.16) B-102. Hon'ble Dr. Satish Chandra, J. considered the matter where mobile checking squad found a vehicle transporting certain goods carrying a declaration form pertaining to import of such goods but such form was blank. Assessing Authority, on mere ground that declaration form was blank, imposed penalty, which was confirmed by first appellate authority but Tribunal reversed their decision imposing penalty. This Court noticed that Truck was intercepted on 2nd August, 2008. It commenced its journey from Andhra Pradesh to U.P. on 27.7.2008 but while in transit, and could reach U.P. border; w.e.f. 1.8.2008, the check-posts in U.P. were abolished. Till then, there was a practice that declaration form pertaining to import used to be carried by truck driver and at the check post, with the help of officer of Tax department, declaration form used to be filled in. The truck driver, in the case in hand, was carrying declaration form as per pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in M/s Sharda Exports Vs. Commissioner, Commercial Tax, U.P., VSTI 2013 (Vol. 18) B-1060 rendered by Hon'ble Pankaj Mithal, J. Paras 5, 6 and 7 of judgment, if read together, show that there was import of seven bundles of leather in the State of U.P., without proper Import Declaration Form, hence penalty was imposed by Assessing Authority and it was confirmed by first and second appellate authorities. The assessee-revisionist brought to the notice of this Court that penalty was imposed only for the reason that proper entries in relation to invoice/bill number and its date were not made in Import Declaration Form, though these documents were accompanying goods. The Court said that in absence of any finding about intention on the part of assessee to evade payment of tax, imposition of penalty was not justified. It is in fact requirement of Section 54(1)(14) of Act, 2008. However, while doing so, the Court observed that entries required to be made in the Declaration Form could have been ascertained from the accompanying documents. There was no finding recorded by authorities below that there was any intention on the part of assessee to evade tax, therefore, imposition of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions in Commissioner of Commercial Tax, Lucknow Vs. M/s Sai Construction and Builders, VSTI 2013 (Vol.18) B- 952, Commissioner, Commercial Tax Vs. U.P. Food Company, 2013 NTN (Vol. 52) - 42, Commissioner Trade Tax, U.P. Lucknow Vs. Nehru Steel, 2012 NTN (Vol. 49) - 144; Commissioner, Commercial Tax Vs. S.R.G. Mercantile Pvt. Ltd., 2012 NTN (Vol. 50) - 353 and Pepsico India Holdings Ltd., Lucknow Vs. Commissioner of Trade Tax, 2003 NTN (Vol. 23) - 751. 32. In fact all the decisions cited at the bar in support of the assessee are where the fact finding authorities i.e. appellate authorities themselves found no justification for imposing tax since there was no finding about intention of evasion of tax on the part of importer and thus orders were upheld by this Court. 33. In the present case, declaration from was not duly filled in, as required specifically in Section 50 and 51 as also Rule 56(1) and, therefore, there was contravention of provision of Section 50(1) of Act, 2008. The Assessing Authority has recorded a finding that by keeping column 6 of Form 38 blank, such declaration form can be repeatedly used for successive import so as to evade payment of tax. This findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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