9911796707
TMI Blog2006 (11) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... n 51 of the Punjab Value Added Tax Act, 2005 by respondent No. 3, The Excise Taxation Officer-cum-Detaining Officer, I.C.C. (Export), Mehmadpur (Shamboo), District Patiala and respondent No. 4, the Assistant Excise Taxation Commissioner, I.C.C. (Export), Mehmadpur (Shamboo), District Patiala. 4. Case set out in the petition is that the petitioners are dealers, registered under the provisions of Punjab Value Added Tax Act, 2005 (for short the Act ) and engaged in the manufacture and sale of Mink Blankets. The petitioners sent a consignment of Mink Blankets on 2-9-2005 under an invoice addressed to a Kota dealer. When the consignment was being transported from Jalandhar - place of business of the petitioners to the place of consignee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 366, Ess Dee Carpet Enterprises v. Union of India and others AIR 1990 Supreme Court 455 and various High Courts in Hoshyar Singh Suresh Chandra Sarees Pvt. Ltd. v. Commissioner, Sales Tax, New Delhi and another (2004) 136 STC 173 (Delhi), State of Tamilnadu v. Madura Coats Ltd. (1996) 100 STC 403 (Madras) and The State of A.P. v. Goodyear India Ltd. (1989) 74 STC 47 (Madras). 6. Thus, on behalf of the petitioners, contention raised is that there could be no question of attempt at evasion where arguable contention was being put forward after producing requisite documents and making full and effective disclosure of facts without any mis-declaration, mis-description or concealment. It is submitted that the said provision is not meant to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum dated 16-9-2005 issued from the office of the Excise and Taxation Commissioner, Punjab stating that tax was attracted on blankets. Same view was reiterated in memorandum dated 29-9-2005. Thereafter from 15-10-2005 an amendment was made in Schedule A List of tax free goods at Serial No. 59 to the following effect :- Blanket made of shoddy yarn and shawls and Schedule B was also amended at entry 5 to the following effect :- Bed sheets, pillow covers and other made ups, but excluding blankets made of shoddy yarn and shawls. 10. We have considered the rival contentions and perused the record. 11. The question for consideration is whether a case was made out for invoking jurisdiction conferred under Section 51 of the Act for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person either conceals relevant information, gives misleading information or acts in any other clandestine way or where from the available information itself, attempt to evade tax is patent. The said power has to be exercised with caution and not as a substitute for ordinary assessment or penalty as separately provided for under the Act. Exercise of power may sometime be overlapping and mere alternative procedure is not conclusive for not exercising the said powers, where it is clear that either there is evasion there being deficiency in documents. inaccurate declaration having been made about description, value and contents of goods or otherwise but where there may be bona fide dispute about interpretation of law, about taxability or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and others, (2006) 146 STC 571(P H), Commissioner of Sales Tax and another v. P.T. Enterprises and another (2000) 117 STC 315 (On the issue of jurisdiction of the Check Post Officer); State of Haryana and others v. Sant Lal and another (1993) 4 SCC 380, Tripura Goods Transport Association and another v. Commissioner of Taxes and others, AIR 1999 S.C. 719, Saral Kumar v. State of Haryana and others, (2000) 118 STC 17 (SC), State of Rajasthan and another v. D.P. Metals, AIR 2001 SC 3076, Swastic Roadways and another v. State of M.P. and others, (2004) 3 SCC 640, A.B.C. (I) Ltd. v. State of Assam and another, (2005) 6 SCC 424, M/s. Krishna Bus Service Private Ltd. v. The State of Haryana and others, AIR 1985 S.C. 165 (provisions for records t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is neither mis-declaration nor concealment, exercise of power of imposing penalty at the check post on the ground of attempt at evasion may not be called for. 15. In the present case, in view of the decisions of the Hon ble Supreme Court relied upon by the petitioners, it cannot be held that the contention of the assessee was not a bona fide arguable point. Though, we do not express any final view on merits, which may be gone into in appropriate proceedings, if necessary, we have to observe that merely because word made ups has been mentioned in Schedule B of taxable goods, it will not be conclusive of the blankets being covered by such expression even if under the Central Excise Tariff Act, the position may be different. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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