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TMI Blog2019 (7) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that there occurred failure to declare the goods and in furnishing Form 8FA declaration and that the furnishing of the bill of entry will not ensure accountability of the transaction. The question as to whether the non-declaration was purposeful or not, is a matter which require detailed enquiry. If the dealer could able to prove that the transaction in question was recorded in the regular books of accounts, even before commencement of the transport, and there was no intention to evade payment of tax at that time, it has to be accepted that the presumption regarding attempt at evasion of payment of tax will be rebutted. The matter requires a reconsideration at the hands of the Enquiring Authority, dehors the conclusion arrived by the Appellate Authority - petition allowed by way of remand. - O.T. Rev. No. 3 of 2019 - - - Dated:- 2-7-2019 - MR C. K. ABDUL REHIM AND MR R. NARAYANA PISHARADI, JJ. For The Petitioner : ADV. SRI.RAJESH NAMBIAR For The Respondent : SR.GOVERNMENT PLEADER V.K. SHAMSUDHEEN JUDGMENT Abdul Rehim, J The above revision petition is filed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as contemplated under Section 47(6) of the KVAT Act. The Intelligence Officer, Squad No. VI, Commercial Taxes, Kasargode conducted the enquiry, in which opportunity was afforded to the revision petitioner. The revision petitioner produced documents like, bill of entry, purchase order copy, letter from the consignee, duty paid receipt, bank statement to show the transaction with respect to the supplier etc. The revision petitioner submitted before the Enquiry Officer that the goods detained is part of 2200 pieces of 'Induction Cookers' imported by them from China through Cochin Port. After clearance of the goods at the Container Freight Station, the entire goods were sold to the consignee and it was transported in three lorries by drawing three separate invoices. It is stated that the sale was effected at Ernakulam, in order to save unnecessary expenses of transportation of the goods from Ernakulam to Kasargode and back to Ernakulam. It is pointed out that the goods were cleared from Cochin Port on production of all requisite documents and information was furnished to the Customs Department with respect to the TIN number etc. It is pointed out that the bill of entry shows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was dismissed. 6. In the order in the second appeal before the Tribunal, it was reiterated that, accompanying of Form-8FA declaration along with the consignment is mandatory, which the revision petitioner had failed to comply. The Tribunal also found that the revision petitioner had generated such declaration with respect to the goods covered under another invoice, which was also transported to the same dealer, simultaneously. Hence the inference was that, the revision petitioner was aware of generating Form 8FA declaration, before starting the transport of goods. Hence it was found that there occurred purposeful avoidance of declaration of the goods, with an intention to evade payment of tax, with respect to the consignment intercepted. Hence it was held that the enquiring authority was right in imposing penalty and that the first Appellate Authority was justified in confirming the said order. 7. In this revision it was mainly contended that, none of the three consignments including the another one intercepted, was not accompanied with Form 8FA declaration and the finding of the Tribunal to the contrary was a mistake on the facts. In support of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transport, itself will give rise to a presumption that there existed attempt at evasion of payment of tax. In support of such a contention the learned Government Pleader placed reliance on a Division Bench judgment of this court in O.T(Rev) No.72/2014, dated 08.06.2018 (Mil Control Limited v. State of Kerala). It is held therein that, without making a declaration as required, the department would not be aware about the import made. The mere fact that the bill of entry will prove the import of the goods, cannot be relied upon to exonerate the dealer from the liability for penalty. There is always a possibility of the suppression being not detected, because the existence of bill of entry would not be noticed by the Commercial Tax Department. The mandate to file declaration before the Commercial Tax Officer having jurisdiction at the place of import is specifically made to ensure that the department has knowledge of the import. The court observed that, in the VAT regime there occurs value addition by selling of manufactured goods. Therefore there is a possibility of evasion in so far as the assessee selling the manufactured goods without the value of the component imported. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself cannot be taken as a proof to rebut such a presumption. This is because of the fact that the dealer can very well enter the transaction in the books of accounts, even after the interception. But at the same time, if the nonproduction of Form 8FA declaration can also be due to an omission or an inadvertence on the side of those who are dealing with the matter. But, the burden to prove that it was only due to an omission or due to an inadvertence, solely lies on the dealer. The fact that transaction in question was truly entered in the books of accounts kept at the relevant time, before the transport was commenced, is a matter which need to be proved before the enquiring authority. 12. In the case at hand, the original authority who passed the penalty order had verified the documents produced. But the finding rendered by him is only to the effect that there occurred failure to declare the goods and in furnishing Form 8FA declaration and that the furnishing of the bill of entry will not ensure accountability of the transaction. It was observed that, subsequent accounting of the transaction in the books of accounts or in the monthly return can be by way of after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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