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TMI Blog2023 (10) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... s, a penalty, which shall not be less than twenty per cent and not more than thirty per cent of the value of the goods and in case he finds otherwise, he shall order the release the goods and the vehicle. In the present case, the only ground for imposing penalty was given that the document (P-8) was given by the petitioner after 08 days. However, giving the documents after 08 days would not make it a forged document. Further the invoice has been issued by a Company from U.S.A. The finding that this invoice is forged and fabricated has been given without verifying the contents of the invoice (P-8). This finding cannot be given without enquiry and there was no attempt of evading tax. Moreover, the petitioner was importing the badam for which he has paid the additional duty of custom and this duty is also refunded. Petition allowed. - HON'BLE MS. JUSTICE RITU BAHRI AND HON'BLE MRS. JUSTICE MANISHA BATRA Present: For the Petitioner : None For the Respondent : Mr. Sharan Sethi, Addl.A.G, Haryana RITU BAHRI, J. 1. Challenge in this petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Almond India Pvt. Ltd. Kundli. Further it was explained that the goods were imported and Special Additional Duty was paid which was refundable to the dealer on showing that the sales Tax / Vat tax has been paid on these goods. The first appellate authority without dealing with the issues raised, just reproduced the findings of penalty order and dismissed the appeal, vide order dated 18.02.2009 (Annexure P-3). 5. An appeal was also filed before Haryana Tax Tribunal at Chandigarh. Annexure P-4. The entire case was argued before the Tribunal showing that though the documents at the time of checking were not there but there was no attempt to evade the tax for the reason that no tax element vas involved as the goods were moving for storage purposes and no sale was there. Further, the goods were imported and the dealer would get refund of special additional duty on showing that the goods have suffered tax on their sale. Hence there was no occasion to keep the transaction out of books. No inquiry was conducted by the lower authority and penalty has been levied on imagination and surmises. The plea raised and evidence adduced by the dealer has not been dealt with by the lower authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein that during the course of roadside checking conducted by the respondent on 12.02.2008, a vehicle bearing No. DL-1LD-6046 loaded with 100 bags of Badam Giri (50 kg each) was intercepted and found carrying these goods without any documents. There were two blank letter pads of the firm M/s Gopi Chand Krishan Kumar Bhatia, Tilak Nagar, Delhi (Annexure R1, R2) with the driver-cum-person incharge of the goods, given by the petitioner dealer and a loose slip no. 03, dated 12.2.2008 (Annexure R3) in the name of Sh. Gopi Chand Ji showing Net-100=50=1 vehicle no. DL-1LD- 6046. These blank papers which were given by the driver at the time of detection were got signed by him, alongwith his statement separately recorded. The copy of the statement of driver is attached as Annexure R4. 11. The driver has stated in his statement that there is no document with him of this transaction. He has only two blank letter pads of Delhi firm. As the consignment of 100 bags of Badam Girls were not accompanied with any genuine and proper documents, the Checking Officer issued a show cause notice/detection report vide no. 0000031, Book No. 6663, on dated 12.2.2008. In response to this notice, Sh. Y. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ambhu Barrier, District Patiala and another, 1977 (4) STC 238 (FB) (P H). The operative part of the judgment reads as under:- 10. An identical question arose before a Full Bench of this Court in Mool Chand Chuni Lal's case (supra), Having interpreted the relevant provisions and relying upon the judgment of this court in case Dunlop India Limited v. State of Punjab [1972] 30 S.T.C. 597 , it was held that the amended section 14-B (7) of the Act for levy of penalty is not based on any assumption that the goods were transported after sale within the State. Its basis is the attempt to evade tax and it prescribes a condition precedent for the levy of penalty. The condition precedent is that the authorised officer should record a finding that there has been an attempt to evade the tax due under the Act. The goods which are to be detained are also specified in section 14-B (6) as goods meant for trade and not covered by proper and genuine documents. Sequelly, in Prakash Roadlines (P) Ltd's case (supra), it was observed that mere failure to produce documents on demand by the assessee not by itself sufficient to sustain levy of penalty 11. It is not a matter of disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In State of Kerala v. M.M. Mathew and another [1978] 42 S.T.C. 348 , Hon'ble Supreme Court observed that strong suspicion, strange coincidences and grave doubts cannot take the place of legal proof. Assuming for the sake of argument (though not admitted), if the consignor or consignee failed to produce the genuine documents. then penalty cannot be imposed under section 14-B (7) of the Act, without recording a specific finding that there has been an attempt to avoid or evade the tax, which is totally lacking in the instant case. In the absence of the same, which is a condition precedent, a penalty clause cannot possibly be invoked, under the present set of circumstances. 14. There is another aspect of the matter, which can be viewed from a different angle. As indicated above, section 14-8 (7) of the Act envisaged different situations for levying penalty. That means, there is a provision for levying a penalty in this respect, but penalty should not ordinarily be imposed only on the ground that such provision exists in statue. It should only be imposed if the party either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government shall, before conducting the enquiry, serve a notice on the consignor or the consignee of the goods detained under clause (1) of sub-section (6), and give him an opportunity of being heard and if, after the enquiry, such officer finds that there has been an attempt to avoid or evade the [tax due or likely to be due under this Act he shall, by order, impose on the consignor or consignee of the goods, a penalty, which shall not be less than twenty per cent and not more than thirty per cent of the value of the goods and in case he finds otherwise, he shall order the release of the goods and the vehicle, if not already released, after recording reasons in writing and shall decide the matter finally within a period of fourteen days from the commencement of the enquiry proceedings (iii) The officer referred to in clause (ii), before conducting the enquiry, shall serve a notice on the consignee of the goods, detained under clause (ii) of sub-section (6), and give him an opportunity of being heard and if, after the enquiry, such officer is satisfied that the documents as required under sub-section (2) and sub-section (4), were not furnished at the information collection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents accompanying their movement with three times the rate of tax applicable on their sale: Provided further that no penalty shall be imposed and no advance tax shall be required to be deposited unless the owner of the goods or his representative or person incharge of the goods or the goods carrier or the driver, as the case may be, has been given a reasonable opportunity of being heard: Provided further that if the penalty imposed under this sub-section is set aside in any proceeding under this Act or by the court, the amount of advance tax and penalty both shall be refunded to the person who paid the same. 16. In the present case, the only ground for imposing penalty was given that the document (P-8) was given by the petitioner after 08 days. However, giving the documents after 08 days would not make it a forged document. Further the invoice has been issued by a Company from U.S.A. The finding that this invoice is forged and fabricated has been given without verifying the contents of the invoice (P-8). This finding cannot be given without enquiry and there was no attempt of evading tax. Moreover, the petitioner was importing the badam for which he has paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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