9911796707
TMI Blog2020 (3) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... ad certain unfilled (blank) column, which gave rise to the apprehension of intention to evade tax. The Assessing Authority issued show cause notice to the revisionist/assessee for levying penalty under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as "the Act, 2008"). The assessee filed reply to the show cause notice. The Assessing Authority after considering the reply of the assessee, rejected the explanation and passed assessment order imposing penalty to the tune of Rs. 16,34,000/- i.e. 40% of the value of the goods in question. 4. The assessee/revisionist aggrieved by the order of the Assessing Authority filed first appeal before the first appellate authority which was dismissed by order dated 25.07.2012. Aggrieved by the order passed by the first appellate authority the assessee/ preferred second appeal before the Trade Tax Tribunal, and the Tribunal by means of impugned order allowed the appeal of the assessee. Hence this revision preferred by the revenue. 5. Learned Standing Counsel appearing for the revisionist has submitted that the order of Tribunal is bad in law as well as on facts. The column no. 6 of Form-38 was left blank delibera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficial website of the department in the manner prescribed by the Commissioner. The aforesaid declaration form for import is Form 38. The Form is required to be sent to the selling dealer or consignor of the other State in two copies. 10. In Form 38 the name and address of the dealer to whom form is to be issued, description of goods, weight / measure, quantity, value in figure, value in words, bill / cash memo / Chalan / tax invoice number and date, name and address of seller / consignor and certain particulars of transporters / carrier, namely, service provider number, truck number, name and address of driver and driving license number are to be filled up. Column no. 1 to 6 may be filled up only with the help of bill / cash memo / chalan / tax invoice. Recurring instances comes to light that column no. 6 is left blank due to which penalty under Section 54(1)(14) of the Act, 2008 is imposed by the assessing authority on the ground that non filling of this column facilitates tax evaders to evade tax by re-using the same form 38 for import of unaccounted goods. It is the case of the department that when entire informations in form XXXVIII are filled up with the help of the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 28-A applies have actually been sold inside the State and the section does not authorise the sales tax authorities either to seize the said goods or to penalise the importer thereof on any such assumption. Its present basis is the attempt to evade tax. The power to detain the goods and levy penalty in respect thereof cannot be exercised merely for the reason that the said goods were not accompanied by the requisite documents or that the documents accompanying them were false. This power can be exercised only if the goods detained are not accompanied by the requisite documents or that the documents accompanying them are false and if there is material before the detaining authority to indicate that the goods are being imported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. The instant case, therefore, in our opinion, clearly falls outside the ratio of the case of Check Post Officer v. K. P. Abdulla & Bros. [1971] 27 STC 1 (SC) as decided by the Supreme Court. 29. The first question that arises for consideration is whether the expression "attempt to evade assessment or payment of tax due or likely to be due" can be said to be vague an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 25.09.2014), wherein similar controversy is involved, has taken same view in respect to unfilled Form-38. 16. Learned Standing Counsel for the revisionist has placed reliance on the judgment of Apex Court in the case of M/s Guljag Industries (supra), whereby he has invited attention of this Court towards the observations made by the Apex Court in para 22 of the judgment, wherein it has been recorded as under : "22. ...... Section 78(2) is a mandatory provision. If the declaration Form 18A/18C does not support the goods in movement because it is left blank then in that event Section 78(5) provides for imposition of monetary penalty for non-compliance. Default or failure to comply with Section 78(2) is the failure/default of statutory civil obligation and proceedings under Section 78(5) is neither criminal nor quasi-criminal in nature. The penalty is for statutory offence. Therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. ........" 17. Perusal sub Section 6 of Section 28A itself indicates that penalty can be imposed only after giving opportunity of being heard that the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
