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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 ..... 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. The penalty order cannot be sustained in the eyes of law - revision allowed. - Sales/Trade Tax Revision No. - 308 of 2015 - - - Dated:- 29-4-2022 - Hon'ble Piyush Agrawal, J. For the Revisionist : Suyash Agarwal For the Opposite Party : C.S.C. ORDER HON'BLE PIYUSH AGRAWAL,J. Heard Shri Rakesh Ranjan Agrawal, learned Senior Counsel, assisted by Shri Mandeep Nath, holding brief of Shri Suyash Agarawal, learned counsel for the revisionist and Shri A.C. Tripathi, learned Standing Counsel for the opposite party. The presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration no. UP 78 CN 9050, in which 545 numbers of batteries were being imported. Along with the goods, all the requisite documents were accompanying and no discrepancy, whatsoever, was pointed out in the said documents, but only in column no. 3 of Form - 38, the amount was wrongly mentioned and column no. 6 was not filled. On the basis thereof, the goods were seized and thereafter, released on furnishing security. Thereafter, penalty proceedings were initiated against the dealer. He further submits that admittedly, the goods were in transit in October, 2011; whereas, section 50(2)(a) of the UP VAT Act provides that where such goods are imported, brought or otherwise received into the State by registered dealer, he shall carry such decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispute that all the documents, as prescribed under the Act, were there. Further, The said provision was amended on 26.05.2014 and the words were being substituted as carry duly filled such declarations or documents. At the time of detention, no such provision was available. Further, on perusal of the material on record, all documents were available and all entries have been made in the books of account of the dealer and therefore, it cannot be said that there was any intention to evade payment of tax. Further, penalty orders have been passed on the basis of the judgement of the learned Single Judge in the case of K.M.G.S. Road Signs reported in 2009 NTN (39) 263 (Alla.); whereas, the Division Bench of this Court in M/s Rama Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 27...... These provisions make it absolutely clear that the power to seize and detain the goods under sub-section (6) of Section 28-A cannot be exercised merely because the goods, when they reach the check-post, were not accompanied by the declaration form contemplated by Section 28-A (1). The real occasion to detain the goods under subsection (6) arises only if the goods are not accompanied by the requisite documents and there is material before the check post officer on which he can reasonably record a satisfaction that the person importing the goods was attempting to evade assessment or payment of sales tax due or likely to be due under the Act. Obviously, if the authorities have been acting in the manner as alleged by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loophole of Section 28-A for the purposes of preventing the evasion of tax. Whatever may be the legal position earlier, law as stands today, is clear and on a plain reading of Section 50 of the VAT Act, it cannot be possible said that absence of Form 38 is immaterial. 23. Having regard to the aforesaid decisions, referred hereinabove, I am of the view that the Division Bench decision in the case of Jain Shudh Vanaspati Ltd., Ghaziabad and others vs. State of U.P. and others (supra) still holds the field and is relevant for the interpretation of Section 50 of the VAT Act. The language of Sections 28-A (6) and 50 (4) is synonymous. There is absolutely no difference in the language. Therefore, the interpretation of Section 28-A read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impose penalty, which is a punishment to be given to a dealer over and above the tax assessed against him. 11. The penalty under Section 54 (14) of the VAT Act does not provide for statutory penalty for failure to make a complete declaration, as in the case of Section 78 (5) of the Rajasthan Sales Tax Act, 1954, which provides for penalty for breach of Section 78 (2) for movement of goods without Form No. 18A/18C. Under Section 54 (14) of the VAT Act, the conditions necessary for imposing penalty is (i) import or attempt to import or to abet in the import of any goods, in contravention of the provisions under Section 50, or Section 51 with a view to intention of evading payment of sale of - (a) such goods; or (b) goods manufactured, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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