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TMI Blog2020 (2) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance of section 50 of the Act and merely the consignment was accompanied with unfilled Form-38 can be terms as intention to evade payment of tax, when the goods are exempt from payment of tax." 4. Brief facts giving rise to the present revision are that Vehicle No. WB-23-B/2306, was intercepted by the Mobile Squad Authority, Assistant Commissioner, Commercial Tax, on 22.01.2013 and the dealer was found importing goods from outside the State and Form 38 had certain unfilled (blank) column, which gave rise to the apprehension of intention to evade tax. The Assessing Authority issued show cause notice to the revisionist/assessee for levying penalty under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as "the Act, 2008"). The assessee filed reply to the show cause notice. The Assessing Authority after considering the reply of the assessee, rejected the explanation and passed assessment order imposing penalty to the tune of Rs. 3 Lacs i.e. 40% of the value of the goods in question. 5. The assessee/revisionist aggrieved by the order of the Assessing Authority filed first appeal before the first appellate authority which was rejected by order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 59. 10. The driver or other person incharge of vehicle carrying goods referred to in sub Section (1) of Section 50 of the Act, 2008 is required to carry the declaration form along with other relevant documents and if on inspection he is found to transport or attempting or abetting to transport any goods to which this section applies without being covered by proper and genuine documents then for reasons to be recorded and after giving opportunity of being heard he may order for detention of such goods. The declaration form for import may be obtained by registered dealer for import of goods either from his assessing authority or he may download it from the official website of the department in the manner prescribed by the Commissioner. The aforesaid declaration form for import is Form 38. The Form is required to be sent to the selling dealer or consignor of the other State in two copies. 11. In Form 38 the name and address of the dealer to whom form is to be issued, description of goods, weight / measure, quantity, value in figure, value in words, bill / cash memo / Chalan / tax invoice number and date, name and address of seller / consignor and certain particulars of transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also that in case any column in Form 38 remains unfilled, then the Officer inspecting the vehicle at the Check Post is under duty to fill up the blank Form in accordance with the other documents alongwith his signature and stamp and release the goods thereafter. 14. In the case of Jain Suddh Vanaspati Ltd. Vs. State of U.P., 1983 U.P.T.C. 198 a Division Bench of this Court considered the similar provisions of the U.P. Sales Tax Act, 1948 and held in paragraphs 23, 29 as under :- "23. The provision contained in Section 28-A as it stands after enactment of U.P. Act No. 33 of 1979 are materially different. It cannot be said that there is any assumption underlying therein that the goods to which the provision of Section 28-A applies have actually been sold inside the State and the section does not authorise the sales tax authorities either to seize the said goods or to penalise the importer thereof on any such assumption. Its present basis is the attempt to evade tax. The power to detain the goods and levy penalty in respect thereof cannot be exercised merely for the reason that the said goods were not accompanied by the requisite documents or that the documents accompanying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded by any of the authority that there was any attempt on the part of the applicant to evade the tax. Inasmuch as goods were not for resale and were not liable to tax in the hands of the applicant it cannot be said that there was any violation of Section 28-A. In the circumstances, the penalty under Section 15-A(1)(0) is not sustainable. 14. In the result, the revision is allowed. The order of Tribunal dated September 3, 1990 is set aside and the penalty under Section 15-A(1)(o) is quashed." 16. Learned Single Judge of this High Court in Sales/Trade Tax Revision No. 441 of 2014 - The Commissioner, Commercial Tax, U.P,. Lko Vs. S/S Dabur India Ltd. 22 Site-4, Ind. Area Sahibabad and other connected revisions (decided on 25.09.2014), wherein similar controversy is involved, has taken same view in respect to unfilled Form-38. 17. Learned Standing Counsel for the respondent has placed reliance on the judgment of Apex Court in the case of M/s Guljag Industries (supra), whereby he has invited attention of this Court towards the observations made by the Apex Court in para 22 of the judgment, wherein it has been recorded as under : "22. ...... Section 78(2) is a mandatory provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 38 found unfilled should have filled the same himself in the light of Circular dated 03.02.2009 and should have allowed the vehicle to proceed alongwith the goods. It is undisputed that the goods transported were the same which were mentioned in the various documents (bill/builty/challan etc.) carried by the driver of the vehicle. 21. The judgment passed by this Court in the case of I.C.I. India Limited (supra) has clearly spelt out the law in this regard and a circular issued by the Revenue clearly indicates that the Officer managing the check post after verifying the goods on the basis of other documents available at that point of time and have filled up the blank column of Form 38 and there was no occasion for imposing penalty, as has been done by the Assessing Officer. 22. The Tribunal has only observed that non-filing of various columns in Form 38 indicates that there was intention to evade tax and only this ground rejected the appeal of the assessee. The Tribunal has not correctly applied the law in this regard, as they have not given any finding about the intention to evade tax, which is a precondition for imposition of penalty. In light of the above decisions, the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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