9911796707
TMI Blog2018 (4) TMI 1580X X X X Extracts X X X X X X X X Extracts X X X X ..... abad, Delhi. After its import and delivery at Delhi the same was being transported to Meerut in the State of Uttar Pradesh and on 23.09.2008 while it was in transit the same was seized, as, it was found that Form-38 being carried with the goods was not complete in various respects and certain columns specially Column No. 6 relating to the Bill/ Invoice number was unfilled. After the seizure, penalty proceedings took place and accordingly a penalty of Rs. 23,25,000/- was imposed upon the revisionist vide order dated 06.06.2009 passed by the Deputy Commissioner, Commercial Tax, Lucknow. Against which it filed an appeal which was rejected and the penalty order was affirmed by the Additional Commissioner Appeals vide his order dated 13.05.2010. Being aggrieved a second appeal was filed before the Commissioner Tax Tribunal, which was also rejected thereby affirming the penalty proceedings and first appellate order vide judgment dated 20.09.2013 which is under challenge in this revision. The contention of learned counsel for the revisionist was that no tax was leviable and payable on the turn over of sale or purchase where such sale or purchase had taken place in the course of export ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the Tribunal and the Authorities below after considering the facts of the case and material on record opined that such Form-38 could be misused and the intent to evade tax was established consequently the penalty has been imposed, which is not at all erroneous. Point no. 6 of the Circular dated 03.02.2009 was applicable only in the case of import from outside into the Territory of India and not thereafter when the goods were being further imported into another States within the country and this Circular had been clarified by a subsequent Circular dated 03.06.2009. It was also contended that these goods were not disclosed in the returns filed by the revisionist. Having heard learned counsel for the parties and perused the records, the Court finds that the competent authority while imposing the penalty has considered the facts of the case and the material available. In its order dated 06.06.2009 it noticed that Form-38 which was mandatorily required to be carried under Section 50 of the Act, 2008, was deficient, as, column no. 6 relating to Bill, Challan, Cash Memo/Invoice number and its date were unfilled. Consequently, the goods were seized on 26.09.2008. The original copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country. It is not as if after delivery of the goods at the destination within the Territory of India if the said goods are further transported to any other part of the country, they would be exempted from tax on sale etc. In the present case the destination of delivery of the telecommunication equipments which was imported from China was Tuglakabad, Delhi, as such, once the goods were delivered to the revisionist at Delhi it is only up to this stage that no tax was leviable under the Act, 2008 and the Act, 1956. Once, it was being transported further to other parts of the country and was being imported in the State of U.P., then the relevant taxation provisions would apply. The fact that the revisionist was not transporting the goods for sale is not material, what is material is as to whether the goods which were being imported into State of U.P. from Delhi were goods other than goods named and described in Schedule I (See Section 50 of the Act, 2008). Different forms are prescribed for being carried during the course of import into the State by road for business purpose or otherwise than in the course of business. In both eventualities Section 50 had to be complied. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porting or attempting or abetting to transport any goods to which this section applies without being covered by the proper and genuine documents referred to in the preceding subsections and if, for reason to be recorded, he is satisfied after giving such person an opportunity of being heard that such goods were being so transported in an attempt to evade assessment or payment of tax due or likely to be due under this Act, he may order detention of such goods. (5) The provisions of sub-sections (3), (7), (8), (9) and (10) of section 48 shall mutatis mutandis apply to goods detained under sub-section (4), as they apply to goods seized under that section." In the present case, Form- 38, which is meant from being carried in the case of import by a dealer in connection with his business was being carried and it is not in dispute that goods which were being transported were other than those mentioned in Schedule- I referred in Section 50. It is not in dispute that Section 50 of the Act, 2008 was violated as the requisite document which was being carried was not as per Rules, as relevant columns were unfilled. The original records were perused by this Court and it was revealed that not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, admittedly column No. 6 of the declaration form was found unfilled, namely, bill, invoice and challan numbers were not mentioned. According to me, mentioning of challan, bill and invoice numbers in the declaration form is very material. By filling column No. 6 and mentioning invoice, bill or challan numbers the declaration form can be correlated with the goods covered by invoices or challan. Photostat copy of Form 38 has been produced before the Court during the course of hearing which is on record. Perusal of the said form reveals that all the columns have been filled except column No. 6. When the applicant was filling all the columns, there cannot be any plausible reason why he has left filling column No. 6. This act appears to be deliberate. Nonfilling of column No. 6 i.e. non mentioning of challan number or invoice number may lead to an inference that in case of non-checking of goods, the said declaration form may be used for any other consignment of a similar quantity, quality, weight and value. In the declaration form, some of the columns may not have that much importance, namely, that in case if the invoice number or challan number is mentioned in column No. 6 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
