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TMI Blog2015 (10) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... e statement of the driver substantiated the case of the VATO. This statement was, however, never put to the Appellant and has been held to be inadmissible - there was no legal justification for issuance of the impugned penalty order under Section 86 (19) of the DVAT Act. - Decided in favour of assessee. - ST. APPL. 28/2013 - - - Dated:- 31-8-2015 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr. Rajesh Mahna with Mr. Ruchir Bhatia, Advocates For the Respondent : Mr. Devvrat, Advocate ORDER 1. This is an appeal under Section 81 of the Delhi Value Added Tax Act, 2004 ( DVAT Act‟) against an order dated 13th June 2013 passed by the Appellate Tribunal, Value Added Tax, Delhi ('Tribunal') by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O on 29th July 2011 by the Appellant in reply to the impounding order. It was stated inter alia that the goods were loaded in two tempos and that the necessary documents such as bill of entry etc. were with one of the two vehicles. It was explained that although the two vehicles were running together, the one which was not carrying the documents got separated and was intercepted by the VATO. Along with the letter, the Appellant enclosed the documents of import, registration certificate etc. 4. The VATO passed a penalty order dated 5th August 2011 creating a penalty demand of ₹ 8,98,997 under Section 86 (19) of the DVAT Act and further stipulated the deposit of the said penalty as a precondition for the release of the seized goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders dated 13th June 2013 upheld the order of the OHA, Mr. S K Kaushik, Member (Judicial), by a separate order of the same date, dissented. 8. Mr. D.C. Anand came to the conclusion that the penalty was rightly imposed on the Appellant since admittedly the tempo which was intercepted was carrying goods without the requisite documents. Further since on the checking of the vehicle at Mahipal Pur, the driver of the vehicle in question Mr. Dheeraj admitted that the vehicle was moving from Airport Cargo to Bijwasan although the registered address of the Appellant was at Joshi Road, Karol Bagh, New Delhi, the possibility of the goods passing to some other party, detrimental to the interest of the Revenue, cannot be ruled out. 9. Mr. S.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8223; in the present case cited only one reason for the impounding of the goods , viz., namely, goods without bill‟. Further it is clear that at the first available opportunity, i.e., 29th July 2011 the Assessee replied explaining the circumstances under which the tempo that was intercepted did not contain the relevant documents. Enclosed with the letter were copies of the relevant documents, i.e., documents of import, registration certificate etc. It is not the case of the Revenue that these documents did not pertain to two consignments in question. In this context, the following findings of fact in the opinion of Mr. Kaushik, in relation to the said documents, are relevant: 38. The bill of entry (page 20 and 31 of appeal file) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s left behind when Vehicle No. DL-1LM 2175 moved away. I, therefore, hold that this contention of the learned counsel for Revenue is without any merit. 14. The above facts corroborate the version of the dealer that there were two tempos carrying the entire consignment. This basic fact was not considered by the two Members who took the view that the penalty order was justified. 15. In Magicon Impex Pvt. Ltd. (supra) in more or less similar facts, the Court found that in the counter-affidavit the Respondent had taken a stand different from that stated in the Mal Roko Aadesh and cited a different new reason for the imposition of penalty viz., that the GR was not available with the driver. In those circumstances, the penalty order was q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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