TMI Blog2019 (1) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... any activity other than sale of two wheelers vehicle, the misutilization of Form-C to import such items had to be tested in that context alone. Therefore the utilization of Form-C to import totally unconnected goods, namely, a single electricity generator set and nonwoven fabric was rightly found to be a case of false declaration - In the instant case, there is no connection between the items for which the assessee was registered and the items that were imported for it's utilization Form-C. Also the items thus imported had no connection with the activity for which the petitioner claims itself to have been registered being trading in two wheelers - Therefore, there does not appear any error in the order passed by the authorities in reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lose any other business at any stage. In such circumstances, the assessee imported one generator set worth more than ₹ 30,00,000/- and non-woven fabric during the course of that assessment year against Form-C i.e. against concessional rate of tax. 5. Upon issuance of penalty notice under Section 10(A) of the Act with respect to Form-C issued to purchase generator set and non-woven fabric, the assessee set up a plea that it had utilized the generator set to generate electricity to run welding machine used to assemble the two wheelers. The non-woven fabric was claimed to have been utilized as an accessory being seat cover of two wheelers vehicles. 6. The explanation furnished by the assessee did not find favour of the Assessing Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he generator set was also utilized only to run a welding machine to assemble the motor vehicle. Therefore, it has been submitted that the petitioner had not made any false representation. Further, reliance has been placed on a decision of this Court in Dharam Pal Satya Pal Ltd. Vs. Commissioner U.P. Trade Tax, Lucknow 2018 NTN (Vol.66)-150 wherein relying on the decision of the Supreme Court in the case of Commissioner of Sales Tax, U.P. Vs. M/s. Sanjai Fabrics 2010 NTN (Vol.44) 69, it was held that the burden to establish mens rea rests on the revenue and that all types of omission or commission involving use of Form-C cannot be embraced or included in the explanation of false representation. Such inference may be drawn only if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and non-woven fabric, there could not have arisen a situation where the assessee could have entertained a belief that he was entitled to import those goods against Form-C. 10. With respect to the second submission advanced by the learned counsel for the assessee that the assessee had utilized the generator set and non-woven fabric for the purpose of it's business being trading in two wheelers, it has been submitted by the learned Standing Counsel that the said explanation was wholly false on facts. Concurrent findings have been recorded by the three authorities based on material and evidence on record in this regard. Therefore, the same does not give rise to any question of law in the present proceedings. 11. Having heard learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as to the utilization of non-woven fabric, inasmuch as it was not the case of the assessee that the same were accessories that may have been used with the vehicles but it was it's case that the same were utilized for the manufacture of accessories that was used as seat cover, again there could not have existed any doubt as to utilization of Form-C to make purchase of such items, inasmuch as it was not the case of the assessee that it had ever disclosed manufacture of accessories as an activity engaged by it. 15. Thus in view of the admitted facts noted above, the question of mens rea that arises has to be tested in those facts. Once the assessee failed to set up a plea either that it was authorized under the registration certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o connection with the activity for which the petitioner claims itself to have been registered being trading in two wheelers. 18. The judgment in the case of The Commissioner, Commercial Tax, U.P. Lucknow, (supra) is also wholly undistinguishable, inasmuch as, in that case, though penalty on import of generator sets had been deleted, however, the assessee in that case had been granted registration certificate for running a plant and machinery. In the case of a manufacturer that may be entitled to run some plant and machinery would stand on a plain different footing from a retailer in finished goods. 19. Therefore, there does not appear any error in the order passed by the authorities in reaching the conclusion that the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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