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2015 (10) TMI 1299 - DELHI HIGH COURT

2015 (10) TMI 1299 - DELHI HIGH COURT - [2015] 85 VST 459 (Del) - Whether bill of entry was not a valid document or invoice and, therefore, the penalty u/s 86(19) of the DVAT Act has been correctly imposed - impounding order u/s 59/61 of the DVAT and recorded the reason for doing so as: "Goods without Bill" - Held that:- there is no mention of the absence of GRs in the “Mal Roko Aadesh‟. The only reason cited is that the goods were 'without bill". The relevant documents of import, includin .....

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- ST. APPL. 28/2013 - Dated:- 31-8-2015 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr. Rajesh Mahna with Mr. Ruchir Bhatia, Advocates For the Respondent : Mr. Devvrat, Advocate ORDER 1. This is an appeal under Section 81 of the Delhi Value Added Tax Act, 2004 ( DVAT Act‟) against an order dated 13th June 2013 passed by the Appellate Tribunal, Value Added Tax, Delhi ('Tribunal') by a majority of 2:1 whereby the appeal of the Appellant was dismissed. 2. The background .....

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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, Mr. Sanjiv Kumar Sharma, issued a 'Mal Roko Aadesh' i.e. an impounding order under Sections 59/61 of the DVAT and recorded the reason for doing so as: "Goods without Bill". The person to w .....

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It was stated inter alia that the goods were loaded in two tempos and that the necessary documents such as bill of entry etc. were with one of the two vehicles. It was explained that although the two vehicles were running together, the one which was not carrying the documents got separated and was intercepted by the VATO. Along with the letter, the Appellant enclosed the documents of import, registration certificate etc. 4. The VATO passed a penalty order dated 5th August 2011 creating a penalty .....

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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 Obj .....

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h came to be heard by the Tribunal comprising three members. While two members viz., Mr. D.C. Anand Members (Judicial) and Ms. Nita Bali Member (A) by their respective orders dated 13th June 2013 upheld the order of the OHA, Mr. S K Kaushik, Member (Judicial), by a separate order of the same date, dissented. 8. Mr. D.C. Anand came to the conclusion that the penalty was rightly imposed on the Appellant since admittedly the tempo which was intercepted was carrying goods without the requisite docum .....

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only pointed out one reason for the impounding viz., the absence 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 w .....

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on was right in holding that the bill of entry was not a valid document or invoice and, therefore, the penalty under Section 86 (19) of the DVAT Act has been correctly imposed?" 12. This Court has heard the submissions of Mr. Rajesh Mahna, learned counsel for the Appellant and Mr. Devvrat, learned counsel for the Respondent. 13. It requires to be noticed at the outset that the Mal Roko Aadesh‟ in the present case cited only one reason for the impounding of the goods , viz., namely, go .....

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ings of fact in the opinion of Mr. Kaushik, in relation to the said documents, are relevant: 38. The bill of entry (page 20 and 31 of appeal file) shows number of imported pieces as 27,187 (10,999 + 6,048 + 2,660 + 7,480). Packing list (page 32 of appeal file) shows number of imported pieces as 27,187 (6,048 + 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 packet .....

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in the vehicle has been prepared by the VATI and is tallying with the inventory submitted by Mr. Mahna/Sharma . Order dated 5th August 2011 of the VATO shows that the number of pieces found loaded in the detained vehicle No. DL-1M 3534 was 3864+6349+1263+5040, which totals to 16516 and this figure of 16516 pieces tallies with the inventory of the detained goods prepared by VATI as well as the dealer. The fact that there were only 16516 pieces in the detained tempo and remaining 10671 pieces had .....

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