9911796707
TMI Blog1990 (1) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-80, 1980-81, 1981-82, 1982-83 and 1983-84. Notice was issued to the petitioner under section 10A of the Central Sales Tax Act, 1956, calling for objection. The assessee-petitioner submitted its objection and the petitioner's contention is that beedi labels, wrappers, etc., are an integral part of the industry and it was purchasing the same without objection for the past several years and therefore under the bona fide intention that the petitioner purchased these goods using C form. But the Sales Tax Officer found that the purchase of beedi labels, wrappers, papers by using the C forms for use in the manufacture of other goods for sale are not authorised by the certificate of registration in force. So he held that the assessee has misused the C form. The Sales Tax Officer imposed on the petitioner the maximum penalty of Rs. 1,38,146. This was by order dated 26th November, 1983, on the ground that the petitioner has violated the provision in sub-section (d) of section 10 read with section 8. 2.. The petitioner filed revision before the Deputy Commissioner, Agricultural Income-tax and Sales Tax, Palghat. The revisional authority found that the offence will fall under section 10(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the petitioner also contended that even if it is construed as an offence coming under section 10(b), the respondents could not establish the case against the petitioner. The respondents have not proved that the petitioner made a false statement at the time of issuing the certificate to the effect that the goods are covered by this certificate. In other words, the question of mens rea has not been considered in its proper aspect. The petitioner also contended that with respect to quantum of penalty imposed, the Board of Revenue was prepared to take a lenient view and it reduced the same to 1 times from 1 times. In doing so it failed to advert to the fact that the petitioner has already paid tax at the concession rate. 5.. The contention of the Government Pleader is that even though section 10(d) alone is mentioned by exhibit P1, order of the first respondent, the ingredients clearly fall under section 10(b). It is seen from exhibit P1 that the assessee issued C form for the purchase of goods not covered by certificate of registration granted to them and thus misused C forms issued. The Government Pleader submitted that the notice issued to the petitioner by the first r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the petitioner acted mala fide or made false representation is a question of fact to be decided on the facts of each case and as the authorities have examined this and entered a finding, this Court will not disturb that finding. 7.. In support of the contention of the petitioner, counsel for the petitioner referred to in Varghese v. Sales Tax Officer [1965] 16 STC 323 (Ker), wherein it is stated that in order to constitute an offence under section 10(b) of the Act it must be proved that the dealer made a representation that the goods purchased were covered by registration certificate with the knowledge that they were not so covered. Where there was no finding that the representations made by the petitioner were false, namely, the C form declarations were issued without the belief that the goods purchased were covered by the registration certificate the imposition of penalty under section 10A would be illegal. This decision will not help the petitioner as there is a specific finding in this case by first and second revisional authorities that the petitioner made false representation. The next decision referred to is Pannalal Umesh Kumar of Ghoghar v. Commissioner of Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate of registration no offence under section 10(b) would be made out if there is no false representation. To bring home the offence under section 10(b), guilty animus or mens rea is essential. In the absence of mens rea no penalty can be imposed under section 10A. This proposition as such cannot be disputed. But its application on the facts of this case is not warranted as there is specific finding in this case. 8.. The offence under section 10(b) is committed when the registered dealer at the time of purchase of any class of goods falsely makes a representation that such class of goods are covered by the certificate of registration. But the offence under section 10(d) is committed when after purchasing the goods for any of the purposes specified in section 8(3)(b), the purchaser fails to make use of the same without reasonable excuse for such purposes. The three ingredients required for the offence are (i) the goods must be purchased for the purpose mentioned in section 8(3)(b), (ii) they are not used for the purpose of which they are purchased and (iii) failure to use for the purpose for which it is purchased has no support or reasonable excuse. [See Manjunatha Tyre Ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainly under section 10(b) is knowledge that the item is not covered by the certificate and the representation that is covered by the certificate. 9.. The question whether the assessee entertained a bona fide belief that the goods are covered by the registration certificate is to be determined by the facts of each case. [See Bhim Sain Sudarshan Kumar v. State [1979] 43 STC 58 (P H)]. Of course if the dealer honestly believes that the particular goods are embraced by the certificate of registration and in that belief makes a representation, he cannot, be held guilty. [See Commissioner of Sales Tax v. Bombay Garage [1984] 57 STC 67 (MP)]. But as stated earlier the question whether the person entertained such belief is a question of fact to be determined by the fact finding authorities. The petitioner knew the certificate does not cover the packing materials and therefore he cannot be heard to say that he bona fide believed that he can purchase packing materials and labels even though not mentioned in the certificate. In such cases inference of bona fide is far fetched and unreasonable. [See Integrated Enterprises v. State of Kerala [1980] 46 STC 103 (Ker)]. 10.. In the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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