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TMI Blog2013 (4) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... eric (haldi) being transported in Truck No. RJ27/GA-4451 was checked on National Highway No. 8 at Khajuri pungarpur) by the ACTO (Hying Squad), Banswara and he found, inter alia, that the driver of vehicle while producing the relevant bills and bilty of the goods being transported did not produce the prescribed form No. VAT 47, which was, inter alia, required to be produced along with other relevant documents, viz., bill and bilty as per section 76(2) of the said Act. A notice was issued to the assessee on March 5, 2009 itself and on March 6, 2009, Mr. Punit Kumar, partner of petitioner-assessee filing reply to the said notice of the Assessing Authority, inter alia, also produced the declaration in form VAT 47 No. 378019, inter alia, contending in the reply that no penalty under section 76(6) of the Act deserves to be imposed, since relevant documents in the form of bills and bilty accompanied the said goods and defect of not furnishing VAT-47 was also removed by furnishing of the same on the very same day as soon as notice was given to the assessee. The Assessing Authority however imposed penalty at 30 per cent. of the value of goods carried at ₹ 2,41,140 upon the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 78(5) of the old Act, 1994 which is equivalent to section 76(6) of the new VAT Act of 2003 could be imposed on the assessee. He also relied upon the latest decisions of different coordinate benches of this court in almost similar circumstances and submitted that this court has consistently upheld the proposition of law that where such declaration is furnished soon upon giving of show-cause notice to the assessee and while relevant documents like bills and bilties are already accompanying the goods in transit and declaration form in ST-18A or VAT 47 and VAT 49 are furnished by the assessee, the penalty under section 76(6) cannot be imposed. He relied upon the two decisions of this court in the case of Assistant Commercial Taxes Officer v. Tata Iron and Steel Company Ltd. reported in[2013] 62 VST 464 (Raj);[2013] 35 Tax Update 249 and Cera Tech India v. Assistant Commercial Taxes Officer reported in[2013] 1 VST-OL 393 (Raj);[2013] 35 Tax Up date 49 in this regard. 6. Per contra, Mr. R. B. Mathur, learned counsel for the Revenue sought to urge that giving of opportunity to the assessee did not mean that the declaration form in VAT 47 submitted in pursuance of the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s far as applying the decision of the honourable Supreme Court in Guljag Industries[2007] 9 VST 1 (SC);[2007] 293 ITR 584 (SC);[2007] 18 Tax Update 321 in the present case, rather blindly by the learned Tax Board is concerned, suffice it to quote para 26 of the said Supreme Court judgment itself, in which the honourable Supreme Court itself restricted its pronouncement to the facts of the case, where a blank or incomplete declaration form 18A or 18C had accompanied the goods in movement and the honourable Supreme Court clearly distinguished the case where there was no such declaration form with goods in transit and further clarified that such later category of cases would be governed by the previous decision of the honourable Supreme Court in the case of D. P. Metals[2001] 124 STC 611 (SC). Para 26 of the said judgment is reproduced below for ready reference (paras 27-29, pages 34 and 35 in 9 VST):- 26. Before concluding, we may mention that in this batch of civil appeals we have civil appeals filed by the Department. These civil appeals relate to cases where specified documents did not accompanied the goods in movement. The lead case in that regard is Civil Appeal No. 5240 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil appeals, preferred by the State as well as by the assessees, accordingly stand disposed of with no order as to costs. 10. The honourable Supreme Court in the case of D. P. Metals[2001] 124 STC 611 (SC) in para 31 has laid down as follows (pages 635 and 636 in 124 STC):- 31. Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under section 78(5) if the requisite documents referred to in sub-clause (2)(a) are not produced, even though the same should exists, would clearly pove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in section 78(5) can be regarded as technical or venial. Once the ingredients of section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples of natural justice is to give a meaningful, purposive and effective opportunity of hearing to the assessee. The corresponding duty and obligation is on the Revenue authority to controvert the material produced by the assessee, return the cogent findings of facts and only if such documents are found, based on relevant material, to be false and forged, he can impose the penalty. But without undertaking such an exercise which he must do before imposition of penalty, the assessing authority cannot mechanically impose the penalty. It is misnomer to say that the honourable Supreme Court in the case of Guljag Industries[2007] 9 VST 1 (SC);[2007] 293 ITR 584 (SC);[2007] 18 Tax Update 321 or even in the case of Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd. reported in[2008] 18 VST 436 (SC);[2008] 12 JT SC 222 while saying that the character of penalty under section 78(5) of the Act was a civil liability and requirement of establishing mens rea on the part of the assessee was not essential for its imposition, never said that the imposition of such penalty was automatic. Holding of a fair and reasonable enquiry was never dispensed with by the honourable Supreme Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of checking in the present case. However, as stated above, no strait jacket sense interpretation deserves to be given in these facts and circumstances. The fact remains that in the present case the assessee even furnished the declaration form in VAT 47 on the very next date of giving of notice on March 5, 2009, i.e., on March 6, 2009. There is no finding in the impugned order passed by the assessing authority on March 6, 2009 itself that such declaration form or bills or bilties already found with the transit on March 5, 2009 are false, forged or unreliable in any manner. In these circumstances, the imposed penalty cannot be found to be justified. 13. Even in the case of Guljag Industries[2007] 9 VST 1 (SC);[2007] 293 ITR 584 (SC);[2007] 18 Tax Update 321, the honourable Supreme Court in para 26 (27 in VST) had made it clear that the said judgment would not govern the cases where no such declaration form accompanied the goods in transit. The learned Tax Board has therefore, fallen into error in ignoring the aforesaid para 26 (27 in 9 VST) of the judgment in the case of Guljag Industries[2007] 9 VST 1 (SC);[2007] 293 ITR 584 (SC);[2007] 18 Tax Update 321 and applied the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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