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TMI Blog2023 (12) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... s that by invoice produced at Annexure-1, stock transfer was made to the Warehouse at Ranchi and while the same was being transported in a vehicle as per the lorry receipt produced at Annexure-1/A, the same was detained and checked at the integrated check-post. The driver of the truck produced Annexure-1, 1/A and Annexure-2 SUVIDHA Outgoing Form which had to be uploaded before the transport originated and the same produced on probable checking. The SUVIDHA Form at Annexure-2 had a different invoice number from that shown in Annexure-1. The value and the quantity tallied with the invoice, but the invoice number was wrongly noticed as 002179; which was actually 002172. This was just a clerical mistake is the contention. The detaining authority, however, rejected the contention of the petitioner and imposed penalty, as per the impugned order at the maximum prescribed under Section 60(4) of the Act. 3. The learned Senior Counsel submits that there can be no mens rea found especially when everything tallied but the invoice number, which mistake was also due to a human error which had to be reckoned by the detaining authority. It is pointed out that while transporting goods inter-State, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner does not prove the genuineness of the transport as has been contended by the learned Government Advocate. The detention was in the early hours of 02.01.2015 and the invoice generated as Annexure-3 series with the supporting documents were generated after the detention; definitely on coming to know of the detention at the check-post and the mistake in invoice number as revealed from the SUVIDHA Form having been noticed by the Check-Post Authority. The invoices are serially numbered and there is no evidence to show the last serial number of the invoice on the day on which the transport commenced. The identity in value is evident from the invoice and the SUVIDHA Form, but, however, the quantity as noticed in the notice is handwritten and not by the authorized signatory. 6. Determining whether there shall be always a mens rea for imposition of penalty, Guljag Industries (supra) is very relevant. We specifically extract paragraphs 29, 31, 32 and 33 of the above decision:- "29. It has been repeatedly argued before us that apart from the declaration forms the assessees possessed documentary evidence like invoice, books of accounts, etc. to support the movement of goods and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as regards the proof of a set of circumstances, the effect of such a provision was to shift the burden of proving to the assessee who was given an opportunity to displace the presumption by leading evidence. This judgment has no application because the very words contained in Section 28-B required the authorities to raise a rebuttable presumption that the goods must have been sold in the State if the transit pass was not handed over at the check-post. In the present case, we are not concerned with the transit pass. In the present case, there are no words in Section 78(5) similar to Section 28-B of the Uttar Pradesh Sales Tax Act, 1948 which states that if the transit pass was not handed over to the officer at the check-post, the Department would be entitled to raise the presumption that the goods in transit were sold in the State. As stated hereinabove, we have to go by the words used in the section to ascertain whether the legislature has excluded the element of mens rea. It is the statutory law enacted by the competent legislature which can exclude the presumption under common law. We hold that Section 78(5) excludes the presumption of mens rea which is normally prevailing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the forms which were duly signed were not filled in. Therefore, in our view the above judgment in D.P. Metals [(2002) 1 SCC 279] has no application to the facts of the present case. As stated, we are concerned with the blank declaration Form ST 18-A/18-C which has travelled with the goods in movement, though signed, was left deliberately blank. The declaration Form ST 18-A/18-C is like a return under the Income Tax Act, 1961. The assessing officer completes the assessment on the basis of Form ST 18- A/18-C. If that form is left blank in all material respects then it is impossible for the AO to arrive at the taxable turnover of the assessee. Therefore, in our view, the judgment of this Court in D.P. Metals [(2002) 1 SCC 279] has no application to the present case. 7. It has been categorically held that Section 78 (2), the contravention of which was the controversy in the cited decision results in a civil liability and even if the goods are exempt from taxation, if the transportation is not supported by requisite declaration, then there is no question of a presumption of mens rea preceding the imposition of penalty. The Hon'ble Supreme Court also drew a distinction between a blan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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