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TMI Blog2009 (10) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... pati is applicable to the interpretation of Section 50 read with Section 50 (4) - Thus, for the detention/seizure of the goods under Section 50 read with Section 50 (4) and 50(5), a case of an attempt to evade the tax and an attempt to evade assessment or payment of tax due or likely to be due under this Act has to be made out as a condition precedent. Before imposing penalty the authority has to give notice under Section 54 (1) and to record a finding either on the basis of material before it, or produced by the dealer, or any other person, or the department and which may include incomplete Form 38, (which may be a ground for seizure of the goods), that there was an intention to evade the payment of tax - petition dismissed - decided ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgments in M/s K.M.G.S. Road Signs Pvt. Ltd., New Delhi vs. Commissioner of Commercial Taxes, 2009 UP Tax Cases 465 and in Commercial Tax Revision No. 481 of 2009 M/s Multitex Filtration Engineering Ltd. Noida vs. Commissioner Commercial Taxes, U.P. Lucknow decided on 20.7.2009 taking inconsistent view, and stayed further proceedings in pursuance to the notice. Shri S.D. Singh submits that in view of the conflicting decisions, it is more appropriate that this Court may decide the issue, otherwise the Deputy Commissioner, Commercial Tax will treat the blank columns in Form-38 to be a conclusive evidence to record findings of evasion of tax and will impose penalty upon the petitioner. Shri S.P. Kesarwani, appearing for the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in an attempt to evade assessment or payment of tax due or likely to be due under the Act. The instant case, therefore, in our opinion, clearly falls outside the ratio of the case of Check-post Officer v. K.P. Abdulla Bros., 27 STC 1 as decided by the Supreme Court. 27...... These provisions make it absolutely clear that the power to seize and detain the goods under sub-section (6) of Section 28-A cannot be exercised merely because the goods, when they reach the check-post, were not accompanied by the declaration form contemplated by Section 28-A (1). The real occasion to detain the goods under sub-section (6) arises only if the goods are not accompanied by the requisite documents and there is material before the check post office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- The decision given in the case of Jain Shudh Vanaspati Ltd., Ghaziabad and others vs. State of UP and others (supra) should be understood in the light of the legal provision as it then stood. The legislatures have consciously amended law to plug the loophole of Section 28-A for the purposes of preventing the evasion of tax. Whatever may be the legal position earlier, law as stands today, is clear and on a plain reading of Section 50 of the VAT Act, it cannot be possible said that absence of Form 38 is immaterial. 23. Having regard to the aforesaid decisions, referred hereinabove, I am of the view that the Division Bench decision in the case of Jain Shudh Vanaspati Ltd., Ghaziabad and others vs. State of U.P. and others (supra) st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing penalty a satisfaction has to be recorded under Section 54 after giving an opportunity to the trader and on the material placed on record that there was an intention to evade the tax. The guilty mind is necessary to be established to impose penalty, which is a punishment to be given to a dealer over and above the tax assessed against him. The penalty under Section 54 (14) of the VAT Act does not provide for statutory penalty for failure to make a complete declaration, as in the case of Section 78 (5) of the Rajasthan Sales Tax Act, 1954, which provides for penalty for breach of Section 78 (2) for movement of goods without Form No. 18A/18C. Under Section 54 (14) of the VAT Act, the conditions necessary for imposing penalty is (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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