9911796707
TMI Blog2021 (12) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order the Tribunal allowed the appeals filed by the Department against the orders dated 7th June, 2001 of the Assistant Commissioner of Sales Tax (ACST) allowing the Respondent's appeals and deleting the penalty in the sum of Rs. 2,20,459/- and Rs. 22,781/- imposed by the Sales Tax Officer, Circle-II, Rourkela, (STO) under Section 10-A of the Central Sales Tax Act (CST Act) for the years 1993-94 and 1994-95 respectively. 2. The background facts are that the Petitioner Assessee runs a Printing Press. The case of the Department was that the Petitioner had purchased offset printing machine, camera and lens, computer and fax machine on the strength of the declaration in Form 'C' although he was not entitled to make such purchases. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.25.2.1994, where 4% tax had been charged with 'C' Form with due stipulation. The categorical finding of the Tribunal was that, "the Respondent had already made false representation in purchasing the Offset Printing Machine knowing fully well that he was not entitled to make such purchase on the strength of the Registration Certificate issued to him by the Sales Tax Officer under the CST Act." Even if the application before the STO was on the strength of the Registration Certificate, which alone does not permit the 'C' Forms to be issued. Furthermore, possession of 'C' Forms also does not entitle the dealer to use it for procuring something to which he is not entitled under the OST Act or CST Act. The further findings of the Tribunal were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for use by him in the manufacture or processing of goods for sale or 4[in the telecommunications network or] in mining or in the generation or distribution of electricity or any other form of power; (c) are containers or other materials specified in the certificates or registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale; (d) are containers or other materials used for the packing of any goods or classes of goods specified in the certificate or registration referred to in 5[***] clause (b) or for the packing of any containers or other materials specified in the certificate of registration referred to in clause (c)]. 8. The Tribunal therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 10 of the Act, ordinary remedy is prosecution which may entail a sentence of imprisonment and the penalty under Section 10A of the Act is only in lieu of prosecution. In light of the language employed in the Section and the nature of penalty contemplated therein, we find it difficult to hold that all types of omissions or commissions in the use of Form 'C' will be embraced in the expression 'false representation'. In our opinion, therefore, a finding of mens rea is a condition precedent for levying penalty under Section 10(b) read with Section 10A of the Act." 11. It was submitted in the present case on behalf of the Petitioner that the element of mens rea of the Petitioner had to be found so as to attract penalty under Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y form prescribed for the purpose of sub-section (4) or sub-section (8) of section 8 which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder; (f) collects any amount by way of tax in contravention of the provisions contained in section 9A, he shall be punishable with simple imprisonment which may extend to six months, or with fine or with both; and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues." Section 10A of the Act provides for the imposition of penalty in lieu of prosecution. Sub-section (1) of the said Section, relevant for our purpose, reads as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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