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TMI Blog2013 (1) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... fter to be referred as `RVAT') and setting aside the order of the appellate authority. The Board held that a belated submission of form VAT 47 on notice being issued for non compliance of provisions of Section 76 (2) (b) of the RVAT could not allow avoidance of the penalty under section 76 (6) of the RVAT. The facts of the case are that the petitioner company (hereinafter `the assessee') engages in the business of manufacturing and trading in foundary products and refractories. In the course of its business the assessee purchased crucible goods from one M/s. Vesuvius India Limited, Mehsana (Gujarat) vide invoice No.2090 dated 15-5-2008 for a sum of ₹ 6,56,463/- against C form, wherein the said seller had charged CST at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee with the penalty of ₹ 1,96,939/- under Section 76(6) of the RVAT Act vide order dated 24-5-2008. The order dated 24-5-2008 was put to challenge by the assessee in appeal before the Dy. Commissioner (Appeals), who following the judgment of the Hon'ble Supreme Court in case State of Rajasthan Vs. D.P. Metals [(2001) 124 STC 611] vide order dated 9-3-2010 allowed the appeal and set aside the penalty holding that as Form VAT 47 submitted by the petitioner assessee on the very same day of checking the vehicle along with the reply to the show cause notice absolved the assessee of any violation of provisions of the 76 (2) (b) of the RVAT Act and thus penalty under Section 76 (6) was wrongly imposed. Against the appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom any allegation of statutory contravention or liability for penalty therefor. Counsel submits that the judgment of D.P.Metals (supra) has been followed by the Hon'ble Supreme Court of India in innumerable cases, wherein the High Court has held that alleged deficiency constituted by a contravention of Section 76 (2) (b) of the RVAT Act in the absence of Form VAT 47 with the goods in transit can be set right with the supply of the Form VAT 47 along with the reply. Counsel submits that the alleged deficiency at the time of checking of vehicle was in the present case removed on submitting the reply to the show cause notice along with a copy of Form VAT 47 duly filled. Counsel submits that the department and the Board could not have ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no escape from the inevitable conclusion that the petitioner assessee could not have been found in contravention of Section 76 (2) (b) of the RVAT Act. Other documents such as invoice and transport receipt were also by themselves indicative of the bonafides of the transit of goods. Following the judgment in case of D.P. Metals (supra), I am of the considered view that at the first instance on the very same day the petitioner assessee having furnished Form VAT 47 to ACTO, and the petitioner could not have been found to be in contravention of Section 76 (2) (b) of the RVAT Act or visited with penalty under Section 76(6) of the RVAT Act. The Board has misdirected itself in overlooking the aforesaid admitted facts and instead focusing on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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