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TMI Blog2021 (11) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... t be imposed if the dealer not found to have contravened the provision of Section 28-A of the Act, 1948. The Court has further held that if the documents have produced along with the reply to the show cause notice, there is no attempt to evade tax and imposed the penalty is bad. The case in hand, revisionist along with reply to show cause notice has filed the documents but no weightage was given to it and the seizure order was passed. Once the documents were produced before passing of the seizure order, it cannot be said that the revisionist had any intention to evade payment of tax or made any contravention of the Act. The impugned order is hereby set aside and the questions of law are answered accordingly in favour of revisionist - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the country. He further submits that 926 cartoons of colgate tooth powder were dispatched from Aurangabad Warehouse to its Kanpur Warehouse as a stock transfer along with which all requisite documents were accompanied. The goods while coming to Kanpur passed through various States and before passing the State of Madhya Pradesh all documents were produced at the entry exit check-post and were duly endorsed. When the goods reached the State of Uttar Pradesh at Raksa check-post at Jhansi, the driver of the truck in question handed over all the documents for filling up the trip-sheet (Behti) in accordance with Section 28-A of the Act, 1948 to the agent. In the truck, some goods of M/s LML Limited, Kanpur was also there. Due to the inadverte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 28A of the Act. Hence the prayers for quashing of the penalty. 5. Learned Standing Counsel supports the order passed by the authorities below. He further submits that at the time of submission of trip-sheet (Behti), no documents whatsoever were produced. On the physical verification, the goods of the revisionist were found in Truck No. HR/55B7590 and in the trip-sheet (Behti) only goods of M/s LML Limited, Kanpur were disclosed and therefore the seizure as well as penalty order were justified. 6. The Court has perused the record. 7. Admittedly, the goods in question were coming as a stock transfer from Aurangabad to Kanpur. On its journey to Kanpur, the goods have passed through the State of Madhya Pradesh and the Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The record reveals that before passing of the seizure order all the relevant documents were produced i.e. Invoice, Form 31, Transport G.R. as well as the documents also stamped of Madhya Pradesh. 9. This Hon'ble Court in the case of Sarvashri Ramesh Chand Santosh Kumar Vs. Commissioner of Trade Tax, U.P. Lucknow (2010 U.P.T.C.-1113) held that the penalty under Section 15-A(1)(o) of the Act, 1948 could not be imposed if the dealer not found to have contravented the provision of Section 28-A of the Act, 1948. The Court has further held that if the documents have produced along with the reply to the show cause notice, there is no attempt to evade tax and imposed the penalty is bad. Paragraph 9 to 17 are being reproduced herein below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Jain Shudh Vanaspati Ltd. Ghaziabad and others Vs. State of U.P. and others 1983 UPTC 183, held that the attempt to evade tax is a mandatory pre-condition for seizure of goods and for levy of penalty and the intention to evade tax cannot be inferred merely for the reason that the goods are not accompanied by the requisite declaration or that certain columns in the form have not been filled up. 14. In the case in hand the basic ground for levying penalty is that the Form - 31 was not available with the goods and in the bilti the name of the parties were subsequently filled up. It was on the basis of the aforesaid that an inference was drawn that the assessee/dealer attempted to evade tax. It is admitted on record that before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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