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TMI Blog1987 (1) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to Rs. 3,276.67 on the sales effected in its branch at Sivakasi. The sales do not attract levy of surcharge under the Tamil Nadu Sales Tax (Surcharge) Act, 1971 (hereinafter referred to as "the Surcharge Act"). Therefore, the assessing officer concluded that the appellant-assessee had contravened section 22(1) of the Sales Tax Act read with section 3(2) of the Surcharge Act. The assessing officer levied a penalty of Rs. 4,914 calculated at one and a half times the tax collected by the dealer under section 22(2) of the Sales Tax Act read with section 3(2) of the Surcharge Act. 2.. In the appeal filed by it before the Appellate Assistant Commissioner, the dealer disputed two items, viz., disallowance of exemption claimed by it on the goods returned amounting to Rs. 4,736.31 taxed at 3 per cent and levy of penalty of Rs. 4,914. As regards the first item disputed, relying on the decision of this Court in Madras Radiators and Pressings v. State of Tamil Nadu [1976] 37 STC 123, the appellate authority allowed the claim for exemption of Rs. 4,308.28 out of Rs. 4,736.31. The Appellate Assistant Commissioner also cancelled the penalty of Rs. 4,914 holding that the dealer bona fide b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of surcharge made by the assessee. 5.. Aggrieved by the above order of the Board, the appellant has now come forward with the present appeal. The appellant contended inter alia that the surcharge is leviable at five per cent on the tax due on all sales, that the place of sales, viz., Sivakasi, lies outside the specified limit of Madurai, that the assessee had collected surcharge on the sales in Sivakasi to the extent of Rs. 3,276.67, and that this collection cannot be held to be against law, since on a combined reading of section 3(2) of the Surcharge Act together with section 22(1) and (2) of the Sales Tax Act, the amount collected by the appellant cannot give rise to an action for penalty. In this regard, the Board had relied on Joshi, Sales Tax Officer v. Ajit Mills Ltd. [1977] 40 STC 497 (SC) wherein it was held that it was not necessary to prove mens rea to levy penalty for illegal collection of tax. Mr. Trilokchand Chopda, learned counsel for the appellant, would rely on the decision in State of Tamil Nadu v. Mathurai Veerasamy Co. [1983] 52 STC 131 (Mad.) and would contend that section 3 of the Surcharge Act does not empower levy of penalty by the Board and that it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as night follows the day, penalty has to be imposed on the person who has so transgressed. He also submitted that the argument advanced on behalf of the appellant, viz., that because section 3(2) of the Surcharge Act does not contain the words "all the provisions" in it, it cannot be held that the provisions of the main Act, namely, the Sales Tax Act, especially section 22 thereof, are not applicable, is not acceptable. In other words, he submitted that there is no question of illegal penalty at all levied in the instant case and as one and a half times the collection penalty can be imposed, it is only after having considered carefully the facts of the case, the Board has levied the penalty on the basis of the penalty imposed by the assessing officer and that the quantum of penalty also is correct. He also brought to our notice that the turnover involved is Rs. 50 lakhs. While replying, the learned counsel for the appellant took us through the decisions in Manganese Ore (India) Ltd. v. Regional Assistant Commissioner of Sales Tax [1976] 37 STC 489 (SC) and State of Madras v. Angappa Chettiar and Sons [1968] 22 STC 226 (Mad.) and also submitted that Ashok Service Centre v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the special enactments regarding various offences including white collar offences. Imposing of penalty cannot be construed as a punishment as contemplated by the criminal law. In fiscal laws, it is an eye-opener for the assessee concerned, as well as others to see that they comply with the provisions of the relevant enactments strictly in their dealings. In other words, the dealer has to place all the materials before an inspecting and assessing authority or any other authority concerned regarding the collection of tax under the fiscal Act and does not become a victim to the accusation that he had suppressed any material. just as an investigating officer, in an offence, acts promptly and in accordance with the procedure established by the law, namely, the Criminal Procedure Code, so also an authority empowered to investigate into as well as to impose the appropriate tax in accordance with law, has to be furnished with all the particulars. If there is any withdrawal or an attempt of withdrawal, certainly the dealer concerned comes within the quasi-offence of suppression. Since an argument had been advanced in this case by the learned counsel that there had been no mens rea on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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