9911796707
TMI Blog2006 (11) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... paper to a Delhi dealer and goods were loaded on truck No. HR-38L-3685. In transit, the consignment was intercepted and detained on September 24, 2005 by respondent No. 2, the Excise and Taxation Officer-cum-Assistant Director (Investigation), Patiala, under section 51(6)(a)(b) read with Explanation under section 51(7)(d) of the Act and show cause notice, annexure P 1, was issued proposing to levy penalty for evading tax on the ground that the petitioner had given wrong description of goods in the bill. The petitioner gave reply and relied upon RG-1 register maintained under the provisions of the Central Excise Act, 1944. He submitted that the consignment carried the correct description being paper on which one per cent Central sales tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the goods comprised in the consignment being card-board, higher rate of tax was attracted and since the petitioner was transporting the goods mis-describing the cardboard as paper, attempt to evade tax was patent. The fact that the Assessing Authority has accepted the description of the goods as duplex paper , taxable at the rate of one per cent Central sales tax before and even after the detention of the consignment by the Checkpost Officer, has not been disputed. It is stated that the stand of the Assessing Authority was wrong and the stand of the check-post officer was correct. It is further submitted that check-post officer could check the description of goods, whereas Assessing Authority had not actually seen the goods during a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 existence of an 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 otherwise, summary power of imposing penalty at the check-post is not intended to be exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port Association v. Commissioner of Taxes [1999] 112 STC 609 (SC); AIR 1999 SC 719, Saral Kumar v. State of Haryana [2000] 118 STC 17 (SC), State of Rajasthan v. D. P. Metals [2001] 124 STC 611 (SC); AIR 2001 SC 3076, Commercial Tax Officer v. Swastik Roadways [2004] 135 STC 1 (SC); [2004] 3 SCC 640 (SC), A. B. C. (India) Ltd. v. State of Assam [2005] 142 STC 88 (SC); [2005] 6 SCC 424 (SC) and Krishna Bus Service Private Limited v. State of Haryana AIR 1985 SC 1651 (provisions for records to be maintained by carrying and forwarding agents and detention of transport vehicles); Comptroller and Auditor General of India, Gian Prakash, New Delhi v. K. S. Jagannathan AIR 1987 SC 537, Lucknow Development Authority v. M. K. Gupta AIR 1994 SC 787, T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner was attempting to evade tax by wronfg description of goods in the bill, which were described by the petitioner as paper and which ought to be declared as cardboard , according to the view taken by the check-post authority. Though, we do not express any final opinion on this issue, which may, if necessary, be gone into in appropriate proceedings, contention raised by the assessee could not be rejected as frivolous or mala fide so as to infer attempt at evasion. A bona fide contention raised cannot be equated to attempt at evasion. Thus, invocation of jurisdiction to impose penalty at the check-post was not called for. For the above reasons, this petition is allowed, impugned notices, annexure P 1, dated September 24, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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