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TMI Blog2023 (1) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... d 120 bags of Gutkha from its manufacturer, Som Products, Delhi through Truck No. HR 38 C 4475. The goods were accompanied with GR of Khanna Carrying Corporation, i.e., the transporter of the revisionist, for 120 bags of Gutkha valued Rs. 16,38,324/-. The goods were accompanied with sale invoice Nos. 863, 864 and 865. The driver was also having transit pass issued by Mohan Nagar Check Post, authorising the transporter to cross border of the State of U.P. and enter into the State of Uttarakhand. The driver was also having discharge certificate issued by exit check post on the border of the State of U.P. The vehicle carrying the aforesaid goods was stopped at Kuwan Hedi, Narsan Check Post of the State of Uttarakhand where the driver provided all the documents possessed by him. Unfortunately, declaration Form 16 was not accompanied with the goods, as by mistake, it remained with the transporter and could not be handed over to the driver along with other documents namely bilty, sale invoice etc. While verifying the documents at Kuwan Hedi, Narsan Check Post in the State of Uttarkhand, the said deficiency in the documents, for the first time, came to the fore. Since Form 16 did not acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate copy of Form 16, produced by the revisionist, contained signatures of different persons, and the trip sheet did not contain the particulars of goods covered by the aforesaid three bills. He also observed that upon investigation, it was found that driver did not state that he had forgotten to take the Form 16 from the transporter. 4) The revisionist then preferred a Second Appeal under Section 53 of the VAT Act, assailing the order passed by first Appellate Authority in Appeal No. 891 of 2008 dated 27.10.2010. The said appeal bearing No. 11 / 2011 for the Assessment Year 2008-09 under Section 58 (XIX) was dismissed by the Commercial Tax Tribunal, Uttarakhand, Dehradun Bench, Dehradun vide judgment dated 27.07.2013, which is impugned in the present revision. The operative part of the impugned order reads as follows: "6. In these appeals, this fact is not under dispute that the goods which were seized by the check post authority were not found covered with any valid import declaration form XVI at the time of verification of the goods, hence it is evidence that the goods in question were being imported in contravention of the provisions of the Act and Rules made there under. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, or likely to be due under the Act. In support of these submissions, he has placed reliance on the three-Judge Bench Judgment of the Supreme Court in the case of State of Rajasthan and another Vs. M/s D.P. Metals, (2002) 1 SCC 279. The Supreme Court was dealing with pari materia provisions under the Rajasthan Sales Tax Act, nemely Section 78(5), which provides for imposition of penalty on person in charge of goods, for non-compliance of Section 78(2)(a) of the said Act, or for submission of false or forged documents or declaration. While upholding the constitutionality of the said provisions, the Supreme Court in paragraph 32 of the judgment observed as under: "32. Such submission of false or forged documents or declaration at the checkpost or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in clause (a) of sub-section (2) are not produced, even though the same should exist, would clearly prove the guilty intent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Justice Pankaj Mithal (as his Lordship then was) in the case of Castrol India Limited and another Vs. Commissioner, Commercial Tax, 2012 NTN Vol. 49 page 202. In that case as well, the declaration Forms were produced subsequently, along with the reply to the show cause notice. The learned Single Judge observed that the object of issuance of show cause notice is to give to the party concerned, not only an opportunity to submit an explanation as to why the security may not be demanded, but also to explain why the goods may not be seized. Therefore, if in response to such a show cause notice, the party produces the necessary documents so as to remove the discrepancy, if any, found at the time of checking, the authorities are legally bound to consider the same before ordering for seizure of the goods. 10) Learned Senior Counsel for the revisionist submits that, in fact, the seizure of the goods itself was improper in the light of aforesaid judgments and, consequently, the imposition of penalty was certainly not called for. 11) He further places reliance on Section 65 of the Act, which raises a statutory but rebuttable presumption that, where any taxable goods for the purpose of bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard, he has drawn our attention to the show cause notice dated 17.08.2008. The limited ground taken in the show cause notice was the absence of the declaration form in respect of goods covered by bill Nos. 863, 864 and 865. The show cause notice does not make any allegation with regard to the goods in question, not being entered in the trip sheet. Therefore, this ground could not be cited as the justification for imposition of penalty. In any event, he submits that the trip sheet has to be filled by the transporter and the failure of the transporter, not to fill the same, even if true, would not justify the imposition of penalty on the revisionist-assessee. 17) The learned Senior Counsel has also drawn our attention to Form 16, which was subsequently supplied by the revisionist along with the reply to the show cause notice. In this regard, a categorical averment has been made in the revision petition to the effect that there is no discrepancy in the signatures found in the original, and copy of Form 16. He would submit that there is no basis to claim that the signatures thereon are different in the original and the duplicate copy. He further submits that the seal of the consignee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s any discrepancy in the original and the duplicate copy of the Form 16 declaration, placed on record. The said declaration forms bear the same signature of Sri Ram Krishna for Brij Lal and sons, the revisionist. Even the signatures of the seller appear to be the same to the naked eye. Both the copies also bear the seal of Brij Lal and sons, as also the official seal. Counsel for the respondent has also not been able to point out any difference in the two copies of the form. 21) Aforesaid being the position, we cannot ignore and shut our eyes to what is evident to us from the record. So far as the reliance placed by learned counsel for the respondent on Guljag Industries (supra) is concerned, we find that D.P. Metals (supra) is a decision of three Hon'ble Judges of the Supreme Court, as opposed to the decision in Guljag Industries (supra), which is a decision of two Hon'ble Judges. We are bound to follow the larger Bench decision. From reading of the said decision it appears that mens rea is essential to attract the imposition of penalty. In a case where the assessee fails to respond to the show cause notice, an inference on mens rea to evade the tax may be drawn. In the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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