TMI Blog2023 (1) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... d duplicate copies of the declaration form also bears different signatures of the seller, also does not appear to be correct. We may observe that the same finding was also returned by the First Appellate Authority. There is absolutely nothing to show that there is any discrepancy in the original and the duplicate copy of the Form 16 declaration, placed on record. The said declaration forms bear the same signature of Sri Ram Krishna for Brij Lal and sons, the revisionist. Even the signatures of the seller appear to be the same to the naked eye. Both the copies also bear the seal of Brij Lal and sons, as also the official seal. Counsel for the respondent has also not been able to point out any difference in the two copies of the form. There are merit in the submission of learned Senior Counsel for the revisionist that since the aspect of the trip sheet not disclosing goods covered by the three bills in question, namely, bill Nos. 863, 864 and 865 was not mentioned in the show cause notice, the same cannot be made basis for imposing penalty - Considering the fact that this was a first such instance, as also the fact that the revisionist had produced the declaration from in Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner, Commercial Tax, issued a show cause notice to the Driver of the vehicle to show cause as to why, the 120 bags of the Gutkha being transported against bill Nos. 863, 864, 865, be not seized. The show cause notice was made returnable by 25.08.2008. The revisionist assessee submitted its reply to the show cause notice, disclosing that it is a registered dealer and it was having agency of Gutkha of the manufacturer Som Products, New Delhi. The revisionist assessee also stated that it was regularly importing Gutkha against Form 16. The sale is covered by Form C of the Central Sales Tax Act, and the revisionist is filing return every month. From April, 2008 to July, 2008 due tax was deposited by the revisionist to the Assessing Authority. The revisionist also stated that the goods in question, were being transported against bill Nos. 863, 864 and 865 by Khanna Carrying Corporation but due to oversight of the transporter, Form 16 bearing no. UK-VAT-A 2007 No. 1807258 was not handed over by the transporter to the driver. Along with reply to the show cause notice, the revisionist also submitted Form 16 No. 1807258 in original issued by Commercial Tax Officer on 18.07.2008 before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced at a later stage was also not found in order, because on the original and second foil of the declaration, the signature of different persons were observed. The disputed goods were also not found entered in the trip-sheet produced before the check post authority. The learned J.C. (A) after elaborate discussion on these issues and after incorporating the proper reasoning in the impugned judgment and order dated 27.10.2010 has fixed up the penalty amount. We feel that under the facts and circumstances involved in these cases, the reduction made in the penalty amount is totally justified. Consequently, we do not find any reason to differ from the findings recorded by the learned J.C.(A) in the impugned judgment and order dated 27.10.2010 and hence the same is liable to be confirmed. 5) The submission of the learned Senior Counsel for the revisionist is that revisionist had produced Form 16 in respect of the goods in question, along with its reply to the show cause notice. In this regard, he has drawn our attention to the communication dated 19.08.2008 addressed by Khanna Carrying Corporation to the Assistant Commissioner, Commercial Tax. He further submits that this is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee with the counsel for the respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principles of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. The quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has thought it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna others vs. State of Bihar, (1964) 1 SCR 897, at SCR p. 910: Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are being imported without a form of declaration prescribed under section 48, unless otherwise proved, after furnishing proper and sufficient evidence, it shall be presumed that such goods are being imported with a view to evade payment of tax. 12) On the other hand, learned Brief Holder for the State submits that the declared value of the goods being transported was about Rs. 5,00,000/-, whereas the actual value of goods was to the tune of Rs. 16.38 lakhs. He also places reliance upon the factual finding recorded by Deputy Commissioner (Commercial Tax) in the order imposing penalty under Section 58(XIX), wherein it is recorded that the declaration form produced by the assessee did not bear the seal; and the original and duplicate copies of the declaration forms also bore different signatures of the seller. 13) Learned Brief Holder for the State also refers to the seizure order dated 17.08.2008, which recorded that the value of the goods covered by Bill Nos. 863, 864 and 865 was disclosed as Rs. 5,46,108/-, whereas the value of the entire consignment was disclosed as Rs. 16,38,324/-. He also refers to the impugned order passed by the Tribunal, particularly paragraph 6, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnee/purchaser is also affixed on both - the original and the duplicate copy, and both the papers also bore signatures of its proprietor Shri Ram Krishna, on behalf of M/s Brij Lal and sons. He further submits that the signatures of the seller in Column 8 in both the copies of Form 16 are same. He has also referred to the Circular issued on 30.04.1988 under the U.P. Trade Tax Act, which states that the Sales Tax check post would not detain the consignment inter alia for the reason that the seller s seal is not affixed on the form. He submits that the said circular continues to be an operation by virtue of Section 80 of the Act. 18) We have considered the rival submissions advanced before us, examined the record, as also the decisions cited by learned counsels on either side. 19) The submission of Mr. Maulekhi, learned counsel for the State, that the value of the goods being transported was declared to be only Rs. 05 lakhs, whereas the actual valuation of the goods was to the tune of Rs. 16.38 lakhs, is not borne out from the records. In fact, the order under Section 58(XIX), passed by the Deputy Commissioner itself records that the value of the consignment was declared at Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he light of the observations made in D.P. Metals (supra), such an inference would obviously be drawn where the assessee resorts to hiding the truth and tendering falsehood. However, a mistake which leads to non-production of the declaration form at the time of checking does not necessarily lead to exhibition of the intention to evade payment of tax. It is for this reason that grant of opportunity to respond to the show cause notice, and produce the documents, is envisaged under Section 48(8) of the Act. If the submission of learned counsel for the respondent is accepted, it would mean, that in every case of failure to produce the declaration form at the time of checking, even when the said failure is validly explained, would attract imposition of penalty. However, that does not appear to be the scheme of the Act. 22) We find merit in the submission of learned Senior Counsel for the revisionist that since the aspect of the trip sheet not disclosing goods covered by the three bills in question, namely, bill Nos. 863, 864 and 865 was not mentioned in the show cause notice, the same cannot be made basis for imposing penalty. In any event, the trip sheet is drawn by the transporter, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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