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TMI Blog2008 (7) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... le had produced the photostat copy of the delivery note and the original of which was later produced along with the reply to the show-cause notice within the time specified in the notice itself. In view of this, no mala fide intention or mens rea on the part of the petitioner for avoidance or evasion of payment of tax could be inferred or gathered. In our view, if there is any contravention, that contravention is merely technical and that cannot be the basis for imposition of penalty under the Act. In favour of assessee. - S.T. Rev. No. 181 of 2004 - - - Dated:- 23-7-2008 - DATTU H.L. C.J. AND BASHEER A.K. , JJ. ORDER:- The order of the court was made by H.L. DATTU C.J. The levy of penalty under section 29A(4) of the Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 is as under: The goods is transported by M/s. India Food Exports, Kollam, from Cochin Port to their self depot at Kuzhithura, Tamil Nadu. Duplicate copy of the delivery note in form 26 (transporting copy) in original is not accompanied with the consignment. Hence bona fide of transport of the goods and thereby an attempt for evasion of tax is suspected. In the notice itself it was indicated that the person in charge of the goods vehicle is given 24 hours time to explain the defect noted in the notice dated October 20, 2001. Within the time granted, the person in charge of the goods vehicle had not only produced the original of the delivery note, but also had explained the reason for not carrying the original of the delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the person in charge of the goods vehicle/driver of the vehicle, the check-post authority had issued notice, pointing out the defects noticed by him at the time of verification of the documents produced. The only defect, that was pointed out was, that, instead of producing the original delivery note, the person in charge of the goods vehicle had produced photostat copy of the original delivery note. The defect that was pointed out by the check-post authority in the notice dated October 20, 2001 is as under: The goods is transported by M/s. India Food Exports, Kollam, from Cochin Port to their self depot at Kuzhithura, Tamil Nadu. Duplicate copy of the delivery note in form 26 (transporting copy) in original is not accompanied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cochin Port to our Kuzhithurai depot in Lorry No. Verified the records in the light of the contentions put forth by the authorised representative and it is understandable that the transporting copy of the delivery note was produced subsequently. But for the interception the consignee would have transported another consignment using the DL.110777. Hence I find that mala fide intention is established on the part of the consignor to evade payment of tax and the following orders are passed: Order No. OR. 2727/01-02 Dated January 22, 2002. In the circumstances mentioned above a penalty of Rs. 1,13,596 (one lakh thirteen thousand five hundred and ninety six only) is imposed on M/s. India Food Exports, Kollam being double the amount attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not in dispute nor can it be disputed by the Department that the person in-charge of the goods vehicle had produced the xerox/photostat copy of the delivery note. The Check-post Officer noticing that the document so produced is not in consonance with the provisions of sub-section (2) of section 29 of the Act had issued a notice to the petitioner asking him to offer his explanation, if any. In the notice, as we have already stated, the only defect that was pointed out by the checkpost authority was that the person in-charge of the goods vehicle had not produced the original of the delivery note, but had produced only a photostat copy of the delivery note. The person in-charge of the goods vehicle, within the time granted by the check-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29A(4) of the Act, the authority under the Act must have a reasonable suspicion that the person in charge of the goods vehicle or the owner of the goods vehicle is trying to evade payment of tax due to the State. When the vehicle was checked at the check-post, the person in charge of the goods vehicle had produced the photostat copy of the delivery note and the original of which was later produced along with the reply to the show-cause notice within the time specified in the notice itself. In view of this, no mala fide intention or mens rea on the part of the petitioner for avoidance or evasion of payment of tax could be inferred or gathered. In our view, if there is any contravention, that contravention is merely technical and that cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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