TMI Blog2019 (6) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... y consequence for non compliance. The circular only indicates the ease with which the checking could be completed at the check posts. In that background, when penalty is to be imposed for non-compliance of the requirement of production of the documents provided for in Section 75(3) and Rule 41(9) and when presumption of evasion of taxes is rebuttable by production of the documents, the Authorities were required to apply their mind to this aspect of the matter. The documents as referred to by the petitioners in their reply dated 7.1.2014 were to be examined to find out as to whether the said documents were genuine and whether the documents were in existence as on the date of movement of the goods. In that regard, if the authorities were satisfied that the documents in the physical form was available as on the date of the movement of the goods, in such event a consideration was necessary to be made as to whether penalty was leviable only because the uploading in the electronic format was not done. In the instant case, no such exercise has been done, but the penalty has been imposed only on the observation that on-line declaration had not been made. Insofar as the tax levied at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that light, the petitioner claiming to be aggrieved is before this Court assailing the imposition of the penalty. The proviso in sub-rule (5) of Rule 41, which provides for furnishing the documents in the electronic format and the non-compliance of which has resulted in the present action is assailed on the ground that the power vested with the Commissioner to issue circulars amounts to sub-delegation by the Government and, therefore, the same is not sustainable. Hence, it is contended on behalf of the petitioner that if the said proviso is declared as ultra vires, the compliance in the electronic format would not arise and, in that circumstance, since the goods were otherwise accompanied by the requisite documents in its physical form, the requirement of law would be met and the levy of penalty would not be justified. 3. The respondents through their affidavit-in-opposition have sought to sustain their action by contending that the impugned circular itself indicates the object with which the furnishing of information in the electronic format is provided for. In that circumstance, it is contended that while checking the goods as empowered under Section 75(12)(B)(II) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel has relied on the decision in the case of A.K. Roy and another Vs.- State of Punjab and others, (1986) 4 SCC 326 and in the case of Sahni Silk Mills (P) Ltd. and another -Vs.- Employees State Insurance Corporation, (1994) 5 SCC 346 and submits that in the said cases the sub-delegation of the power is held unsustainable. 6. In order to appreciate the contention, we have at the outset taken note of the decisions relied upon by the learned counsel for the petitioner. In the case of A.K. Roy and another (supra) , the issue was with regard to the complaint lodged by the Food Inspector, Faridkot and the issue was as to whether he was competent in that regard. To consider the same, the provisions of the Food Adulteration Act, 1954, was taken into consideration, wherein the complaint was to be lodged by the person authorized by the Government. Since the complaint was not lodged by the person authorized, the cognizance taken was held unsustainable, since through the impugned notification, the Food (Health) Authority who was to file the complaint had in turn authorized the Food Inspector. 7. In the case of Sahni Silk Mills (P) Ltd. and another (supra), the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Item no.2 belongs to the petitioner. The common ground observed is that the person in-charge of the transported goods could not produce proper and genuine documents which are required as per Act 2003. There is no specific indication with reference to the different items of goods seized. In that background, the communication dated 11.12.2013 referring to the said seizure on 10.12.2013 and seeking for the relevant documents from the petitioner for the verification would be relevant. In respect of the same, the petitioner through their communication dated 11.1.2014 has referred to the documents which they claim had accompanied the consignment. However, through the order sheet in the proceedings of the Superintendent of Taxes, the indication is that the Transporter has not made on-line declaration of the consignment which essentially is the noncompliance of sub-rule (5) to Rule 41 of Rule 2005. The same also indicates that the dealer is, therefore, asked to show-cause why taxes and penalty should not be imposed. Subsequent thereto, the order dated 22.05.2014, impugned herein, is passed wherein it is indicated that the petitioner had made the on-line declaration on 16.12.2013, about 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
