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TMI Blog2022 (5) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, Division-I, Allahabad in Second Appeal No. 196 of 2014 for the assessment year 2011-12 arising out of penalty proceedings initiated under section 54(1)(14) of the UP VAT Act, in which following questions of law have been framed:- "(i) Whether the facts and circumstances of the case, the Tribunal was correct uphold the penalty u/s 54(1)(14) of UPVAT Act on the ground that books of accounts was not produced whereas the requirement of documents to be carried during transit of goods u/s 50(4) of the Act is only to carry proper and genuine documents which has not been disbelieved? (ii) Whether the Tribunal was correct not to consider that filing of all the columns of form 38 for the purposes of section 50 of the Act was not mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g substituted as "carry duly filled such declarations or documents." He further submits that at the time of interception and seizure of goods, no such provision was there. For imposing the penalty, the necessary ingredient is to hold whether there was any intention to evade payment of tax. In the case in hand, all the documents were there and the Department was well aware after the detention that the goods have been imported and there cannot be any intention to evade payment of tax. He prays for allowing the revision. Per contra, learned Standing Counsel supports the order passed by the Tribunal and submits that there was contravention on the part of the dealer while importing the goods and therefore, there was intention to evade payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was interpreted in Jain Shudh Vanaspati Ltd., Ghaziabad and ors vs. State of UP and ors 1983 U.P.T.C. 198 as follows:- "23. The provision contained in Section 28-A as it stands after enactment of U.P. Act No. 33 of 1979 are materially different. It cannot be said that there is any assumption underlying therein that the goods to which the provision of Sectioin 28-A applies has 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in Jain Shudh Vanaspati Ltd. (supra) has held the field for more than two decades, and that the intention to evade the tax has been found to be necessary ingredient before imposing the penalty under the Act, on the dealer or any other person. 8. In Multitex Filtration Engineering Ltd. (supra) a learned Single Judge noticed the decision in M/s K.M.G.S. Road Signs Pvt. Ltd. (supra) and held as follows:- "22. In the case of M/s KMGS Road Signs Pvt. Ltd., New Delhi vs. Commissioner, Commercial Taxes, U.P., Lucknow (supra) this Court has upheld the seizure of the goods on the ground that column Nos. 2, 3 and 6 of the declaration form were blank. According to learned Single Judge, column Nos. 2, 3 and 6 are material columns should necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 50 read with Section 50 (4). Thus, for the detention/seizure of the goods under Section 50 read with Section 50 (4) and 50(5), a case of an attempt to evade the tax and an attempt to evade assessment or payment of tax due or likely to be due under this Act has to be made out as a condition precedent. In this view of the matter the observation of the learned Single Judge in the case of M/s KMGS Road Signs Pvt. Ltd. is not correct in entirely and is to be read in the light of the observation made above." 9. Shri S.D. Singh would submit that in para 26 of the judgment in Multitex Filtration Engineering Ltd. (supra) the Court has observed that the blank column no.6 in Form 38 i.e, non-mentioning of challan number or invoice number may lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discussion, it cannot be said that the law laid down in Jain Shudh Vanaspati Ltd. (supra) has been diluted, and that the requirement of intention to evade the tax is no longer the requirement under the Act before imposing the penalty." The Division Bench of this Court has held that the intention to evade payment of tax has been found to be necessary ingredient before imposing the penalty under the Act. The material on record shows that no such intention to evade payment of tax was there. In view of the aforesaid facts & circumstances as well as the law laid down by the Division Bench of this Court, the penalty order cannot be sustained in the eyes of law. The impugned order passed by the Tribunal is set aside. The revision is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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