9911796707
TMI Blog2023 (10) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 2. As per petition, the petitioner is carrying on trading in at Delhi having TIN No. 67380101725 and the petitioner deals in Badam and Badam Giri. The Badam is mainly imported from outside India. The same is sent for job work i.e, the giri is extracted out of Badam and then this Girl is stored in cold storages, Subsequently this is sold. When the Badam is imported, on the import Additional Duty of Custom is levied. This duty is refunded when the importer pays the Sales Tax or Value Added Tax on the imported goods. The notification dated 14.09.2007 is attached as ANNEXURE P-1. 3. The petitioner sent his goods (Badam) imported from outside India for job work i.e. extracting Giris out of the Badam. After the extraction of Giri the goods were being sent from Delhi to Kundli for storing the same in cold storage. The regular accountant was on leave and the junior staff instead of making a challan on letter head, sent the goods in Truck and handed over a blank letter head. The goods were checked in Haryana and were detained as no prescribed documents were accompanied the goods. The dealer appeared & produced purchase bill No. 1415393, copies of Inward and Outward challan and other do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds of appeal and arguments raised. The Tribunal only reproduced passages of decision of Hon'ble the Supreme Court in State of Rajasthan Va. M/s D.P. Metals reported as (2001):18- PHT-441 and dismiss the appeal. 7. In case of D.P. Mattel, Hon'ble the Apex Court was dealing with the issue of vires of Section 78 (5) of Rajasthan Sales Tax Act, 1994. It was only with regard to upholding of Vires that the said observations were made by the Apex Court. The Tribunal instead of deciding the issue regarding attempt to evade tax and whether penalty could be imposed and in the facts and circumstances of the case just relied upon the observation made in the case of D.P. Metals. 8. A review was also filed but the same was dismissed by stating that provisions of Section 31 of Haryana Value Added Tax Act, are similar to section 37 of Haryana General Sales Tax Act, which are further similar to Section 78 of Rajasthan Act. Hence there is no occasion to entertain the review. Copy of the review order dated 20.01.2011 is attached as Annexure P-7. Hence the present writ petition 9. In para No. 10 of the petition, reference has been made to Division Bench judgment of this Court in a case of M/s Ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Checking Officer was not satisfied with the reply produced by C.A. and adjourned the case for 25.2.2008. Sh. Y.S. Rana, the authorized signatory appeared before the Checking officer 23.2.2008 and requested him that the case may be decided today. After giving full opportunity to him, the authority could not be satisfied with the documents and arguments put before him, therefore, a penalty of Rs.4,95,000/- was imposed under Section 31(8) of the Act and the advance Tax calculated @ 12.50% i.e. Rs. 2,06,205/- was also charged. The Checking Officer concluded that the petitioner's emphasis is that he is an exclusive importer of Badam and due to lack of knowledge of the junior staff, the documents of the goods were not prepared and sent with the goods transported, was not admitted treating it to be a concocted story. 12. Heard. 13. Reference at this stage can be made to invoice No. 1415393 (P-8) issued by Blue Diamond Growers, Sacramento, California, U.S.A and product description is mentioned as BD 50LB Bag Nonp Inshell amounting to $ 81,000.00. 14. The department while passing the impugned order has not taken in to consideration the above document on the sole ground that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question and had deposited the central sales tax at the rate of 4% coupled with the fact that the import permit In Form 40 dated 7.8.1996 was accompanying the consignment, as prescribed under West Bengal Sales Tax duly signed by the purchasing company and by the Sales Tax Authority of West Bengal Indicating number of deep freezers and other particulars of the consignment and also the number of the goods receipt. The Presiding Officer, Sales Tax Tribunal having considered these facts found weight in the argument raised on behalf of the assessee, particularly the fact that the payments were through the banks and the transaction was pre-authenticated by the Sales Tax Department of West Bengal and Tribunal reduced the penalty levied (Rs. 1,26,000/-) to 15% only. The sales tax is to be levied at the rate of 4% or 12% is entirely a different matter to be determined by the authorities at the appropriate time. 12. Be that as it may, the fact remains is that the assessee submitted the sales tax return, much prior to the detection of the present consignment and paid the tax through bank accordingly, describing all the relevant details. Not only that, the transaction was pre-authenticat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory obligation is a matter of discretion of the authority to be exercised judicially and on consideration of all the relevant circumstances. Hon'ble Apex Court in Hindustan Steel Ltd. v. The State of Orissa [1970] 25 S.T.C. 211 has ruled that "even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. 15. Thus, seen from any angle, we are of the considered opinion that in the absence of any cogent material and specific finding that there has been an attempt to avoid or evade the tax due or likely to be due, no penalty can be imposed on the assessee as contemplated under section 14-8 (7) of the Act. The contrary argument on behalf of the Department "stricto-sensu" deserves to be and are hereby repelled as the aforesaid judgments are the complete answer to the problem in hand." 15. The ratio of the above mentioned judgment can be applied to the facts of the present case because Section 31 (8) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consignor or the consignee of the goods, penalty equal to fifty per cent of the value of the goods involved. In case, he finds otherwise, he shall order release of the goods for sufficient reasons to be recorded in writing. He may, however, notwithstanding anything contained in clause (ii) of sub-section (6), order release of the goods and vehicle on furnishing a security by the consignor or the consignee in the form of cash or bank guarantee or crossed bank draft for an amount equal to the amount of penalty imposable and shall decide the matter within a period of fourteen days from the commencement of the enquiry proceedings." 31 (8) The officer detaining the goods shall record the statement, if any, given by the owner of the goods or his representative or the driver or other person incharge of the goods carrier. If, after the inquiry including an inquiry into the nature of the transaction which occasioned the movement of goods, such officer finds that there has been an attempt to evade the tax, he shall, by order, impose on the owner of the goods and In case the owner is not forthcoming or his identity is not disclosed by the person incharge of the goods or the driver or per ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
