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TMI Blog1989 (4) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... of Uttar Pradesh the same was checked. Form XXXI was not produced by the driver, on the plea that he had left it behind. According to the assessee's case as set out in the order of the Tribunal, the sale invoices and form XXXV contained the particulars of form XXXI referred earlier, but the same were deleted from form XXXV when presented at the check-post, because since after the issuance of form XXXI and its despatch to the ex-U.P. supplier, the State Government declared the series of form XXXI in question valid up to 31st July, 1984 only. Further, when the goods reached their destination, i.e., Najibabad, the assessee's place of business, the assessee obtained a fresh form XXXI of the new series from its assessing officer and submitted the same before the said authority. In the above circumstances, the assessee pleaded that there was no breach on its part, of the provisions contained in section 28-A of the Act. It may also be observed that the goods in dispute were seized at the check-post, which were subsequently released to the assessee on its furnishing security. In due course, penalty proceedings under section 15-A(1)(o) of the Act were initiated against the assessee. Thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard the learned counsel for the parties, I am of the opinion that the order passed by the Sales Tax Tribunal cannot be sustained. As already noticed, section 15-A(1)(o) of the Act provides for penalty against those who act in disregard to their obligation talked of in section 28-A of the Act. It is necessary to refer to the provisions of section 28-A and the purport of these provisions, to find out the obligations cast on an assessee or other persons under the same provisions. The heading of section 28-A is itself meaningful and classifies the subject with which it deals, namely, "import of goods into the State against declaration". Under the Rules framed under the Act, different forms of declaration are prescribed for import of goods in connection with business or otherwise than in connection with business. Sub-section (1) of section 28-A, inter alia, provides that any person who in connection with his business intends to bring, import or otherwise receive, into the State from any place without the State, any goods liable to tax under the Act in excess of such quantity or measure or of such value as stated in clauses (a) and (b) of sub-section (1), shall obtain the prescribed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed at preventing evasion of tax on sales and purchases to be made inside the State. In order to come within the mischief of that provision it is necessary to show that there was an attempt on the part of the importer or any other person to evade tax. The power to detain the goods and levy of penalty in respect of such goods cannot be exercised unless two-fold conditions are made out. There cannot be any proper exercise of the power in that regard merely for the reason that the disputed goods were not accompanied by the requisite documents or that the documents accompanying them were false. These powers can be exercised only if the goods detained are not accompanied by the requisite documents or that the documents accompanying them are false and if there is material before the detaining authority to indicate that the goods are imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. It was observed: "...........that the obligation to make declaration and submit the declaration forms to the carrier of the goods have been placed only upon the dealers importing the goods liable to tax in excess of the quantity, measure or value notifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability which is comparable to punishment for the commission of an offence. Now when a statute provides for imposition of penalty, it will have to be found out from the scheme of the Act and the particular provisions under which a penalty has been imposed, whether any case for imposition in a given case has been made out or not. The expression in the opening part of section 15-A "if the assessing authority is satisfied" vests some kind of discretion in the authority imposing penalty, to find out whether the import or transport, or attempt to import or transport, etc., of any goods was in contravention of the provisions of section 28-A. If in the opinion of the authority, there was no such contravention, no penalty can be imposed. The liability to penalty arises only if the Sales Tax Officer is satisfied about the existence of the conditions which give jurisdiction and the quantum thereof depends upon the circumstances of each case. In terms of the decision of the Division Bench in the case of Jain Shudh Vanaspati Ltd. [1983] 53 STC 54 (All.); 1983 UPTC 198, two-fold requirements are necessary of which a mention has already been made. The assessing authority had found that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued that mens rea or guilty intent are not necessary ingredients for the imposition of penalty under section 15-A(1)(o). The element of mens rea was not required to be taken into consideration while imposing the penalty under the said provisions. He relied upon a decision of a learned single Judge of this Court in the case of Bulaki Das 1987 UPTC 154, referred to by the Tribunal in its decision. On the other hand, it was argued for the assessee that the said decision runs counter to the decision of the Division Bench in Jain Shudh Vanaspati case [1983] 53 STC 54 (All.); 1983 UPTC 198, inasmuch as, unless it was found as a fact that the use of invalid form was intentional and that too with a view to evade payment of tax, no penalty was imposable under the provisions in which it was imposed. On first impression, the arguments on behalf of the assessee, it appears, have some substance. However, it is not necessary to go into that controversy for the decision of this case because, on the findings recorded by the Sales Tax Tribunal no penalty was leviable on account of technical breach only. In Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211; [1972] 83 ITR 26, the Supr ..... 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