9911796707
TMI Blog2015 (10) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... s a registered dealer of Ward-42/KDU, dealing with footwear and readymade garments under the brand name "Woodland‟. Certain goods were imported from China in 404 cartons. They were cleared by the Customs Department on 28th July 2011. The consignment was further transported on that day i.e. 28th July 2011 from the Airport Cargo warehouse in two tempo vehicles bearing registration Nos. DL 1LM 2175 and DL IM 3534. The relevant documents pertaining to the consignment was with the driver of the tempo bearing registration No. DL 1LM 2175. Although both tempos were initially travelling together, the tempo bearing registration No. DL 1LM 3534 got separated and was intercepted by the Value Added Tax Officer (VATO) (Enforcement-II). The VATO, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. 5. The Appellant then filed objections before the Objection Hearing Authority ("OHA‟) inter alia contending that there was no default by the owner of the imported goods as the relevant documents were carried by one of the two tempos travelling together. It was pointed out that there was no loss to the Revenue and, therefore, the penalty which had been paid under protest, was illegal and arbitrary. 6. The OHA passed an order on 18th October 2011 confirming the imposition of the penalty. Although it was noted that the Objector had filed photocopies of the invoices, packing list, air way bill, challan of the Central Excise & Customs etc, the OHA held that the Objector had "failed to file any documents in favour that the place wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the Bill. It was noted that the Appellant promptly complied with that order and on the very next day produced the requisite documents which were verified by VATO. In the circumstances, the penalty sought to be imposed could not be justified on some other ground. A reference was made to the decision of this Court in Magicon Impex Pvt. Ltd. v. Commissioner, Trade and Taxes (2012) 47 VST 367 (Del). Even otherwise, the particulars which were required to be indicated in the GR, Form DVAT-32 were set out in the customs examination certificate and in the bill of entry. 10. The third member, Ms. Nita Bali, concurred with the view of Mr. D.C. Anand and held that the impugned order of the OHA suffered from no infirmity or illegality and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... + 2,660 + 7,430 + 10,999) and number of imported cartons as 404 (76 + 59 + 166 + 103). Custom examination receipt dated 28th July 2011 (page 22 of appeal file) shows that in total 404 packets were imported. The dealer just on the next day, i.e., on 29th July 2011 submitted, before the VATO, the detailed inventory (page 23 of appeal file), which is in two parts viz: (i) 250 cartons containing 16516 pieces detained by VATO, and (ii) 154 cartons containing 10671 pieces received in the godown of the Appellant. The details provided by the dealer also include design and rate. The VATO in the order dated 5th August 2011 has categorically admitted by stating that "the inventory of the goods in the vehicle has been prepared by the VATI and is tallyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l". The relevant documents of import, including the B/E, customs certificate etc. were produced by the dealer on the next day along with the letter dated 29th July 2011. 17. The third reason mentioned in the opinions of the majority is that the statement of the driver substantiated the case of the VATO. This statement was, however, never put to the Appellant and has been held to be inadmissible by Mr. Kaushik. 18. The Court is satisfied that in the facts and circumstances of the present case, there was no legal justification for issuance of the impugned penalty order under Section 86 (19) of the DVAT Act. 19. Consequently, the question framed by the Court is answered in the negative, i.e, in favour of the Assessee and against the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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