TMI Blog2015 (3) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... on April 11, 2007 vide notice dated March 27, 2007 of more than weeks but the representative of the petitioner for the reasons best known requested to pass penalty order then and there. According to me the ACTO respondent had no option except to impose the penalty when the requirements were not complied with. What further enquiry was required to be made when petitioner did not want to avail of reasonable opportunity granted by the ACTO even for producing the books of accounts and supporting material. Further it is apparent on perusal of builty that the builty refers the name of sender "Jindal" and issued by Deepak Road Lines, Hissar, Haryana and the observations of the ACTO appears to be correct that the goods were transmitted from the factory of Jindal industries from Hissar to Kishangarhbas. Neither the petitioner submitted any clarification or certificate or affidavit from the so-called "Jindal" as to non-remittance of the goods from their factory to Kishangarhbas, on the contrary even the driver Deepak Kumar stated this fact before the ACTO that the vehicle was having "loha girders" which was loaded from the factory of Jindal Rolling Mills, Hissar at 4 p.m. and was going to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharatpur, (in short, the DC(A) ), dated October 17, 2007 who had quashed and set aside the order of penalty passed by the learned ACTO (FS), (in short, the ACTO ). The brief facts as emerging on the face of the record is that a vehicle bearing No. HR-12-GA-0425 was intercepted by the ACTO (FS), Alwar of the respondent-Department on Behror Tatarpur Road on March 27, 2007. In the said vehicle, the ACTO found iron girders which were being transported from Hisar to Kishangarhbas. However, on verification from the Driver, Deepak Kumar, he produced a bill No. 15 dated March 27, 2007 of M/s. Santosh Steels, Kathuwas, Alwar and Builty No. 181 issued by Deepak Road Lines, Near Hanuman Mandir, Satroad Khurd, Hisar (Haryana) wherein the date has been mentioned as February 12, 2007 and against the name of the sender of the goods, it is mentioned as Jindal . It bears FGL No. T 1406941512725. Since, there were contradictions in the statement of the truck driver viz-a-viz, the bill and builty number, the vehicle was detained by the ACTO and a show-cause notice dated March 27, 2007 was issued for hearing on April 11, 2007. It was also noticed by the ACTO that the vehicle did not stop at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry from the purchaser as well as from the seller and should not have straight away imposed the penalty then and there. He placed reliance on the judgment of this court rendered in the case of Assistant Commercial Taxes Officer v. Kishori Shyam Brijesh Kumar [1994] 93 STC 213 (Raj), Assistant Commercial Taxes Officer, Kota v. Associated Steel industries, Kota [2006] 15 Tax Up-Date 169. The learned counsel for the petitioner further submitted that the penalty has wrongly been imposed upon the petitioner-assessee and deserves to be deleted. He further submitted that as to how, it has been observed that the goods were coming from Hisar to Kishangarhbas, Alwar when the bill was issued by the petitioner having its business at Kathuwas, Alwar for being transmitted to one Rajasthan Hardware Store, Kishangarhbas. He further submitted that the bill is quite genuine and contents of the bill could not have been doubted at all by the respondent-Department. Accordingly, merely on assumption or presumption no penalty could be levied. On the other hand, Mr. R.B. Mathur, assisted by Ms. Tanvi Sahai, learned counsel appearing for the respondent-Department, submitted that the ACTO as well as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties, perused the impugned orders passed by the Tax Board and the DC(A) as also the judgments cited at bar. I have also perused the record of the assessing officer which was summoned for ascertaining and perusal of the facts. It would be appropriate to quote section 76(6) of the VAT Act, which reads as under: 76. (6) The incharge of the check-post or barrier or the officer empowered under sub-section (4) after having given the owner of the goods or person duly authorized in writing by such owner or person incharge of the goods, a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall impose on him for possession or movement of goods, whether seized or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or declaration, a penalty equal to thirty per cent of the value of such goods. On perusal of the same, it transpires that a reasonable opportunity has to be granted to the owner or a person duly authorized by such owner or the driver or the person incharge of the vehicle or carrier. In the instant case, Bramh Prakash appears on behalf of the petitionerassessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted any clarification or certificate or affidavit from the so-called Jindal as to non-remittance of the goods from their factory to Kishangarhbas, on the contrary even the driver Deepak Kumar stated this fact before the ACTO that the vehicle was having loha girders which was loaded from the factory of Jindal Rolling Mills, Hissar at 4 p.m. and was going to Kishangarhbas from Hissar. In the light of these facts, no clarification or further claim was or even reply was filed by the petitioner-assessee before none of the authorities denying these facts. The judgments relied upon by the learned counsel for the petitionerassessee, according to me are distinguishable inasmuch as the case of Assistant Commercial Taxes Officer v. Kishori Shyam Brijesh Kumar [1994] 93 STC 213 (Raj). In that case, this court came to the conclusion that merely on the basis of the statement made by the dealer, it could not be considered to be an admission at all since, the basic requirement of law had not been complied with and until and unless a clear finding is given after examining the books of accounts or other documents. whereas in the present case, even the petitioner had failed to produce th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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