TMI Blog2020 (2) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... by Form 38 and all other documents were being carried along with other documents and only due to human error column would remain unfilled. It was the duty of the Officer managing the Check Post who after discovering that some column of Form 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 - 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. The impugned order of Tribunal is contrary to settled legal proposition and is therefore set-aside - revision allowed. - Trade Tax Revision No. - 62 of 2014 - - - Dated:- 28-1-2020 - Alok Mathur, J. For the Revisionist : N.C.Mishra,Chandra Has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rejected the appeal of the assessee/revisionist. Hence this revision preferred by the revisionist. 6. Learned Standing Counsel appearing for the revenue has submitted that the order of Tribunal is bad in law as well as on facts. The date of column no. 8 of Form-38 was left blank deliberately by the revisionist with intention to use the same again so as to evade tax. The learned counsel for the revisionist has relied upon the judgement of the Apex Court in the case of M/s Guljag Industries Vs. Commercial Tax Officer, 2007 NTN (Vol. 35) 61 , wherein the Apex Court has held that if relevant column of forms have not been filled while importing the goods the presumption is that there is intention to evade payment of tax as the said forms can be used again. 7. Learned counsel for the revisionist on the other hand has supported the judgement and order passed by the Tribunal stating that there is no error apparent in the same and no interference from this Court is required. The revision is devoid of merit and is liable to to be allowed. He submits that the goods being transported was fertilizer, which is exempted from tax, and therefore submitted that there could not have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly with the help of bill / cash memo / chalan / tax invoice. Recurring instances comes to light that column no. 6 is left blank due to which penalty under Section 54(1)(14) of the Act, 2008 is imposed by the assessing authority on the ground that non filling of this column facilitates tax evaders to evade tax by re-using the same form 38 for import of unaccounted goods. It is the case of the department that when entire informations in form XXXVIII are filled up with the help of the relevant bill / cash memo / chalan / tax invoice then there is no reason not to fill up column no. 6 i.e. bill / cash memo / chalan / tax invoice number and date. According to the department this clearly indicates import of goods to evade payment of tax which attracts penalty under Section 54(1)(14) of the Act, 2008 unless it is shown that even if details in column no. 6 have not been filled up yet there was no intention to evade payment of tax. 12. In the instant case it is admitted fact that the revisionist had duly applied for and obtained Form 38 for import of goods and the date of Column 8 of the said Form was left blank on account of negligence of the revisionist. It is only on account of non f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em are false and if there is material before the detaining authority to indicate that the goods are being imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. The instant case, therefore, in our opinion, clearly falls outside the ratio of the case of Check Post Officer v. K. P. Abdulla Bros. [1971] 27 STC 1 (SC) as decided by the Supreme Court. 29. The first question that arises for consideration is whether the expression attempt to evade assessment or payment of tax due or likely to be due can be said to be vague and whether the power conferred upon the Check Post Officer in this regard can be said to be arbitrary. In our opinion, the expression attempt, to evade assessment or payment of tax due or likely to be due cannot be said to be an expression conveying vague ideas. It is, in our opinion, an expression having a definite connotation. An attempt to evade assessment or payment of tax due or likely to be due can take place in so many different ways that it is not possible for any legislature to specify all such methods of evasion in the Act. The expression does not become vague merely because all the circumstances in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 78(5) provides for imposition of monetary penalty for non-compliance. Default or failure to comply with Section 78(2) is the failure/default of statutory civil obligation and proceedings under Section 78(5) is neither criminal nor quasi-criminal in nature. The penalty is for statutory offence. Therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. ........ 18. Perusal sub Section 6 of Section 28A itself indicates that penalty can be imposed only after giving opportunity of being heard that the goods were being so transported in an attempt to evade payment of tax due or likely to be due under the Act and therefore mens rea becomes essential ingredient, and therefore the facts in the case of M/s M/s Guljag Industries (supra) are distinguishable in respect to the provisions of the Act, 2008 applicable in the State of Uttar Pradesh. 19. Non-filling up of date in column no. 8 i.e. not mentioning date of bill / cash memo / chalan / invoice number may lead to an inference that in case of non-checking of goods the declaration form may be reused for importing goods of same qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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