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TMI Blog2021 (11) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... k Post who after discovering that some column of Form 38 found unfilled should have filled the same himself in the light of Circular dated 03.02.2009 and should have allowed the vehicle to proceed alongwith the goods. Revision dismissed. - Sales/Trade Tax Revision No. - 104 of 2015, 105 of 2015 - - - Dated:- 11-11-2021 - Hon'ble Piyush Agrawal, J. For the Party : S/S Raghunath Trading Co. For the Revisionist : S.C. ORDER HON'BLE PIYUSH AGRAWAL, J. Heard Shri A.C. Tripathi, learned Standing Counsel for the applicant - revisionist. No body appears on behalf of the opposite party. In these two revisions, common question of facts are involved and hence, the same are being decided by a common order. Sales/Trade Tax Revision No. 104 of 2015 is being taken as a leading case. The present revision has been filed against the judgement order dated 01.12.2014 passed by the Commercial Tax Tribunal, Ghaziabad Division-2, Ghaziabad in Second Appeal Nos. 452 453 of 2012 for the assessment years 2008-09 and 2009-10 arising out of the penalty proceedings under section 54(1)(14) of the U.P. Value Added Tax Act (hereinafter, referred to as, 'the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy of penalty under Section 54(1)(14) of the Act, 2008 in contravention of the provisions of Section 50 of the Act, 2008. As per scheme of the Act, 2008 any person, who intends to bring, import or otherwise receive, into the State from any place outside the State any goods other than goods named, and described in schedule-I in such quantity or 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 this principal place of business is situated or in case there is no such place, where he ordinarily resides or shall down load from official website of the department in the manner as may be prescribed under Rule 58 or 59. 10. The driver or other person incharge of vehicle carrying goods referred to in sub Section (1) of Section 50 of the Act, 2008 is required to carry the declaration form along with other relevant documents and if on inspection he is found to transport or attempting or abetting to transport any goods to which this section applies without being c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carrying the goods was carrying all the relevant documents including the bill/challan/bilty etc. from which the details of goods being carried on the vehicle could have been verified by the officer concerned and therefore there was no occasion for the assessing officer to pass penalty order, inasmuch as there was no intention on the part of the assesee to evade tax. 13. Learned counsel for the assessee/respondent has also produced a copy of Circular dated 03.02.2009, passed by the office of the Commissioner, Commercial Tax U.P., which has been addressed to all the Zonal Additional Commissioners/Additional Commissioners Grade-II etc. wherein it has been provided that in case vehicle importing goods is accompanied with Form 38 and the goods being carried tallies with the said Form 38 and also that in case any column in Form 38 remains unfilled, then the Officer inspecting the vehicle at the Check Post is under duty to fill up the blank Form in accordance with the other documents alongwith his signature and stamp and release the goods thereafter. 14. In the case of Jain Suddh Vanaspati Ltd. Vs. State of U.P., 1983 U.P.T.C. 198 a Division Bench of this Court considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Limited Vs. Commissioner of Sales Tax, (2003) 134 STC 286 (All), wherein in similar circumstances the Court has held as under :- 13. In the present case, dealer's books of account was accepted. Tribunal recorded the finding to this effect. Admittedly, bill and builty were produced at the time of the checking at the check-post and form XXXI had also been submitted along with bill and builty. The purpose of form XXXI is, to bring to the notice of the department about the import of the goods so that the imported goods may not be escaped from consideration at the time of assessment. Merely because some off the columns of form XXXI were not filled which was merely a procedural defect it cannot be said that the provisions of Section 28-A has not been complied. No finding whatsoever has been recorded by any of the authority that there was any attempt on the part of the applicant to evade the tax. Inasmuch as goods were not for resale and were not liable to tax in the hands of the applicant it cannot be said that there was any violation of Section 28-A. In the circumstances, the penalty under Section 15-A(1)(0) is not sustainable. 14. In the result, the revision is allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials / evidences on record that there was an intention to evade payment of tax. The guilty mind is necessary to be established to impose penalty under Section 54(1)(14) of the Act, 2008. If the last fact finding authority i.e. the tribunal has recorded a finding of fact that there was no intention to evade payment of tax, same cannot be interfered with in revision under Section 58 of the Act, 2008 provided the finding is perverse or it is based on consideration of irrelevant material or non consideration of relevant material. 20. In the present case also the vehicle was accompanied by Form 38 and all other documents were being carried along with other documents and only due to human error column would remain unfilled. It was the duty of the Officer managing the Check Post who after discovering that some column of Form 38 found unfilled should have filled the same himself in the light of Circular dated 03.02.2009 and should have allowed the vehicle to proceed alongwith the goods. It is undisputed that the goods transported were the same which were mentioned in the various documents (bill/builty/challan etc.) carried by the driver of the vehicle. 21. The judgment passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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