9911796707
TMI Blog2018 (4) TMI 1580X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in the State of U.P., then the relevant taxation provisions would apply. 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 course of such import adherence to Section 50 of the Act, 2008 was must. 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 only Column 6 but even Column 8 of the original copy as also other relevant columns were unfilled. Thus, one of the two prerequisites for imposition of penalty under Section 54(1)(14) was satisfied. First Appellate Authority and Tribunal have concurrently recorded a finding based on material on record that there was intent to evade tax as aforesaid which does not require interference in exercise of revisional powers of this Court as it can not be said that they erred in exercising their jurisdiction in this regard. - Levy of penalty confirmed. - Trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the telecommunication equipments which had been imported into India and were being transported from Delhi to Meerut, as, these goods were not taxable, therefore, considering the language used in Section 54(1)(14) of the Act, 2008 and the law on the subject as propounded in the case of Jain Shudh Vanaspati Ltd. Vs. State of U.P. and Ors. reported in (1993) 53 Page 54 and M/s Rama Pulses Vs. State of U.P. and Ors. reported in 2009 NTN (41) 189 , there was no question of any intent to evade tax, consequently, and especially in view of the provisions contained in the Circular issued by the Commissioner Commercial Tax Tribunal U.P. on 03.02.2009, point 6 thereof, there was no question of imposition of any penalty in the matter, but, the Tribunal and the Authorities below had failed to appreciate this aspect of the matter and had erred in exercising their jurisdiction. Therefore, the question involved in the revision is as to whether, the goods imported into the country which were not liable to tax in view of Section 7 of the Act, 2008 and Section 5 of the Central Sales Tax Act, 1956, their transportation, even if deficient in respect of the documents being carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled was proof of the fact that it was intended to be reused with intent to evade tax by importing other goods from outside into the State of U.P. by reusing it. The Form- 38 did not contain the name of the authorized representative of the businessman importing the goods. The Deputy Commissioner relied upon the decision of the Supreme Court rendered in the case of Guljag Industries Vs. CTO reported in 2007 NTN (35) 61 (SC) and the decision of the Allahabad High Court in the case of M/s KMGS Road Signs Pvt. Ltd. Vs. Commissioner Commercial Taxes, U.P., Lucknow reported in 2009 NTN (39) 263 (All.) in support of his order imposing penalty of ₹ 23,25,000/- upon the revisionist. The Court also finds that the First Appellate Court has also duly applied its mind to the facts and the relevant material to affirm the penalty order. It repelled the contention of the revisionist that in the second copy of Form-38 all the columns were filled by saying that if it was so then there was no reason as to why the original copy was not filled, which was indicative of the intent to misuse the Form 38 and evade tax. Such unfilled form could be reused for importing goods as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst evasion of Tax. Section 50 of the Act, 2008 reads as under:- 50. Import of goods into the Sate by road against declaration- (1) Any person (hereinafter in this section referred to as the importer) who intends to bring, import or otherwise receive, into the State from any place outside the State any goods other than the goods named and described in Schedule-I in such quantity of measure or of such value, as may be notified by the State Government in this behalf, in connection with business, shall either obtain the prescribed form of declaration in such manner as may be prescribed from the assessing authority having jurisdiction over the area, where his principal place of business is situated or, in case there is no such place, where he ordinarily resides or shall download from official web site of the department in such manner as may be prescribed: Provided that where the importer intends to bring, import or otherwise receive such goods otherwise than in connection with business, he may, at his option, in the like manner obtain the prescribed form of certificate. (2) (a) Where such goods are imported, brought or otherwise received into the State by registered d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re unfilled. Thus, one of the two prerequisites for imposition of penalty under Section 54(1)(14) was satisfied. Now, in this context the other prerequisite for imposition of penalty was the intent to evade tax. Now this intent could be in respect of a tax due or likely to be due under the Act. Based on the material before them, the Authorities below as also the Tribunal have opined that there was an intent to evade tax, as, unfilled Form- 38 was susceptible to reuse for importing other goods. The Tribunal has referred to the judgment in M/s Rama Pulses (supra), wherein it has been held that 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. It has also relied upon the decision in M/s Multitex Filtration Engineering Ltd. (supra), wherein it has been held that Non mentioning of challan number or invoice number may lead to an inference that in case of non-checking of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verify from the invoice or the challan wherein all these details are mentioned. The circular of the Commissioner is also to this effect. The circular dated 3.2.2009, issued by the Commissioner, Trade Tax, referred by the learned Counsel for the applicant, says that in case out of column Nos. 2 and 3, if one of the columns is not filled, the same may be got filled and the goods may not be seized. The circular does not say that in case if column No. 6 is not filled, the goods cannot be seized. Therefore, the applicant cannot get any benefit of the circular, inasmuch as that circular is not applicable to the present case. This Court may also refer to another decision of this Court rendered in a Bunch of revisions bearing Sales/ Trade Tax Revision No. 267 of 2014; M/s Modi Tyre Company Pvt. Ltd. Vs. The Commissioner, Commercial Taxes decided on 12.03.2014 in this regard, wherein, the finding recorded by the Commercial Tax Authorities and the Tribunal regarding the intent to evade tax were not interfered with after relying upon various decisions on the subject and it was also observed that all the cases relied by the revisionist/ petitioner were those where no finding had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
