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TMI Blog2024 (12) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... t revision was admitted on the question no. 3, 4 and 5. 3. The facts in brief are that the petitioner with an intent to set up a manufacturing facility in the State of U.P. were procuring various materials and keeping cement for construction of the premises and during the course of such construction used the cement after procuring the same within the State and outside the State in respect of part of the cement procured by the revisionist from outside the State, the petitioner claimed the benefit under Form C. The Assessing Officer by means of an order dated 12.11.2012 held that as the assessee was consumed the cement for installation of plant and machinery, he was not entitled to get the benefit of Form C. Ultimately the matter travelled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in purchasing the cement and consuming the same, there was no mens rea at the instance of the revisionist and as such, no penalty could be imposed against them. However, the tribunal dismissed the appeals preferred by revisionist and upheld the penalty order. 4. While arguing the present revision, the submission of the counsel for the revisionist is that entitlement of reduced rates of tax on sales in the course of inter state trade is available by virtue of Section 8(1) read with Section 8(3)(b) of the CST Act. Section 8(3)(b) of the CST Act is quoted herein below: "8 (3) The goods referred to in {***} sub section (1)- (b) {....} are goods of the class specified in the certificate of registration of the registered dealer purchasing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 10(d), the revisionist had produced all the material to justify that there was a reasonable excuse by the revisionist and thus, in terms of the mandate of Section 10(d), the penalty ought not to have been imposed. 7. Reliance is placed by the counsel for the revisionist on the judgment of the Gujarat High Court in the case of Morvi Cotton Merchants Industrial Corporation Ltd. Vs. The State of Gujarat (Sales Tax Cases-Vol.36 page 347), wherein the Gujarat High Court interpreted the phrase "without reasonable excuse" and held that for imposing a penalty, it was necessary to have alleged and proved by the Department. He further argues that in the present case no such burden has been discharged by the Department prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 10(b) read with Section 10A of the Act." 8. He further places reliance on the judgment of the Supreme Court in the case of Commissioner of Central Excise, Chandigarh Versus Pepsi Foods Ltd (2010 (260) E.L.T. 481 (S.C), wherein the Supreme Court had the occasion to interpret Section 11 AC of the Central Excise Act and held that for attracting and levying penalty under Section 11 AC, the criminal intent or mens rea was a necessary constituent. Paragraph nos. 19, 20, 21 and 23 of the said judgment are quoted herein below:- "19. From a perusal of the aforesaid section, especially the underlined portion, it is clear that in order to attract the penalty provision under Section 11 AC, criminal intent or `mens rea' is a necessary constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed by this Court also. A reference in this connection may be made to the decision in Union of India v. Rajasthan Spinning & Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.). This Court considering Section 11 AC of the Act held in para 19 at page 12 of the report as follows: "19. From the aforesaid discussion it is clear that penalty under Section 11AC, as the word suggests, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section." 9. Similarly the Supreme Court had the occasioned to deal with the similar issue in the case of CIT Versus Reliance Petroproducts Pvt. Ltd, 2010 Vol-11, SCC Page 762. 10. In the light of the said submissions, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prescribed in the various statutes have to be interpreted in the light of the language used in the said statutes. It is clearly well settled that where the penalty prescribed under a fiscal statute, is dependent on happening of particular act without anything else to be established, no necessity is to be established and the penalty is a natural consequence of the happening of that event, however, in the physical institute, if a penalty is prescribed dependent on factor as specified in the said statutes, the penalty can be imposed only on the happening of the said event and after observing the conditions as prescribed. In the present case, the interpretation of Section 10(d) has come up for consideration before the Supreme Court in the j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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