9911796707
TMI Blog2021 (11) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... hether under the facts & circumstances of the case, the Commercial Tax Tribunal was legally justified in deleting the levy of penalty under section 54(1)(14) of the U.P. Value Added Tax Act?" Brief facts of the case are that admittedly, the goods were being imported from Kolkatta to Ghaziabad. Along with the goods, all the requisite documents were accompanying, only column no. 6 was left blank. On the said basis, the goods were seized and on furnishing the security amount, the same were released and thereafter, penalty proceedings under section 54(1)(14) of the Act were initiated and the penalty was imposed. On appeal, the penalty proceedings were quashed, against which the Revenue filed a second appeal, which were dismissed affirming the order of the first appellate authority. Learned Standing Counsel submits that the Tribunal as well as the lower authority were not justified in quashing the penalty proceedings as in Form 38, column no. 6 was left blank, which led to the inference of re-use of the same, but still the Tribunal as well as the first appellate authority have wrongly quashed the penalty proceedings, as there was intention to evade tax. Per contra, learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transporters / carrier, namely, service provider number, truck number, name and address of driver and driving license number are to be filled up. Column no. 1 to 6 may be filled up only 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 facil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 them were false. This power can be exercised only if the goods detained are not accompanied by the requisite documents or that the documents accompanying them 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 ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned 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 revisionist 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 provision. If the declaration Form 18A/18C does not support the goods in movement because it is left blank then in that event Section 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
