TMI Blog2016 (3) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... ic exclusion of electronic variety of these machines - the conclusion is obvious that even electronic survey instruments are covered by Entry No. 14 in Part-F of the First Schedule of the Act. - Decided in favor of revenue. Levy of penalty - Section 12 of Tamil Nadu General Sales Tax Act, 1959 - Held that:- the return submitted by the appellant was on account of bona fide belief in correctness of appellant’s stand that the goods in question were chargeable only at the rate of 3%. In our considered view, in the facts of the case it would not be proper to hold that the appellant had submitted a return which was incorrect to its knowledge or belief. Only after the outcome of the legal dispute by virtue of this judgment, the authorities can be justified in holding henceforth that the return was incorrect. In such a situation it would not be just and proper exercise of discretion to hold the appellant guilty of submitting incorrect return so as to attract penalty for the same. Hence, in the peculiar facts of the case and in the interest of justice, we set aside the balance dues of penalty. - However, the penalty already paid by the appellant shall not be refunded and the same may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines, and computers of analog and digital varieties, one record units, word processor and other electronic goods and parts and accessories of all such goods At the point of first sale in the State 3% Part F Sl. No. Description of Goods Point of levy Rate of tax 14 Binoculars, monoculars, opera glasses, other optical telescope, astronomical instruments, microscopes, binocular microscopes, magnifying glasses, diffraction apparatus and mountings therefor including theodolite, survey instruments and optical lenses parts and accessories thereof At the point of first sale in the State 16% 3. There is no difficulty in accepting the consistent finding of the authorities based upon appellant s own declaration in respect of goods which were imported and declared before the customs authorities as survey instruments, that the goods are covered by the generic expression survey instruments . The main controversy is whether on account of being electronic survey instruments the goods would be out of Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... printers, tabulating, calculating machines and duplicating machines etc. In all these four entries there is a specific exclusion of electronic variety of these machines. On the other hand in relevant Entry no. 14 such exclusion of electronic variety of any of the machines and apparatus such as survey instruments is conspicuously missing. Clearly the intended effect is deliberate so as to include binoculars, monoculars, survey instruments etc. of all varieties, be they manual or electronic. Had the intention been different, in Entry 14 also exclusion of electronic survey instruments could have been inserted and specified as in Entry Nos. 10 to 13 in respect of other different machines or instruments. Hence, the conclusion is obvious that even electronic survey instruments are covered by Entry No. 14 in Part-F of the First Schedule of the Act. 5. Learned Counsel for the appellant has placed reliance upon judgment in the case of M/s BPL Ltd. v. State of Andhra Pradesh reported in (2001) 2 SCC 139. This judgment has been elaborately discussed by the High Court and held to be not applicable to the facts of this case. We have also considered the facts and law involved in the said ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placing reliance upon the following judgments:- (1) M/s Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 (2) Commissioner of Sales Tax, Uttar Pradesh v. Sanjiv Fabrics, (2010) 9 SCC 630 In M/s Hindustan Steel Ltd. in paragraph 8 it was held that although the Statute permitted imposition of penalty but still the authority concerned had the judicial discretion to consider whether penalty should be imposed for failure to perform a statutory obligation. In such a situation the discretion has to be exercised judicially after consideration of all the relevant circumstances. Even if minimum penalty is prescribed, the authority may be justified in refusing to impose any penalty in some peculiar situations, such as, where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the Statute. In Sanjiv Fabrics it was reiterated that there is a rebuttable presumption that mens rea is essential ingredient in every offence. For examining whether mens rea is essential for an offence created under a tax Statute, three factors require particular attention, (i) the object and scheme of the Statute; (ii) the language of the section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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