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TMI Blog2024 (9) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... in and signed before the import of goods to the consignor. There is no provision in the Uttarakhand Value Added Tax Act, 2005 to produce new prevailing import declaration form before the Inquiry Officer, and hence, subsequent new declaration form produced by the assessee, along with his reply to the show-cause notice, cannot be a ground not to impose penalty on the assessee. After perusing the order of the Tribunal, it is worth highlighting that imposition of penalty is on the ground that the trader was importing the goods with an import declaration form, which was invalid Form-XVI, and trip-sheet under Section 48A had not been prepared. The very fact that when the goods are seized as per the provisions of Section 43 of the VAT Act, the provisions of Section 48 would require to be examined, which deals with the power to seize goods. Even in Section 43 (5), where an order of penalty has to be passed, an opportunity of hearing has to be given, and the officer has to be satisfied that there was an attempt to willfully not show the goods in accounts, register and other documents, and only then the penalty has to be imposed not exceeding 40% of the value of goods. After seizure of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the revisionist, the revision(s) is being allowed, and the order of the Tribunal is being set-aside. - RITU BAHRI, C.J. AND RAKESH THAPLIYAL, JJ For the Revisionist : Mr. S.K. Posti, learned Senior Counsel assisted by Mr. Ashutosh Posti, learned counsel. For the Respondents : Ms. Puja Banga, learned Brief Holder. COMMON JUDGMENT: (PER HON BLE THE CHIEF JUSTICE MS. RITU BAHRI) The revisionist has challenged the penalty order passed by the Deputy Commissioner (Assessment)-2, Commercial Tax, Haridwar, and the judgment of the Commercial Tax Tribunal, Bench Dehradun, dated 25.11.2014, whereby after setting-aside the judgment passed by the First Appellate Authority, imposed a penalty of Rs. 10.00 lakhs on the revisionist. 2. The revisionist is a manufacturer of rubber tires. On 24.09.2013, Mobile Squad Authority, Amarpur, Haridwar have checked the Vehicle No. HP72 3524, and on inspection, found that the transported goods rubber by Farm-16 No.-U.K. VAT/K-2010-2440358, through M/s East India Transport Agency, 20B Abdul Hameed Street, Kolkata, by Bilti No.-6169578 (in two copies), bill no.1376/ date 17.08.2013 of M/s Mysoor Polymers and rubber product Ltd., 20B K.R.S road, Meta Str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment in the case of Commissioner of Sales Tax vs. M/s R.K. Enterprises, 2006 NTN Vol. 30 All., dated 03.01.2006, where it has been held that merely because Form-31 was declared obsolete, an inference cannot be drawn that any attempt was made to evade the tax. In that case, there was a challan, gate pass and Form-31, though were obsolete, were attached with the documents. In the above said background, the imposition of penalty was found not to be correct. 7. On the second issue, reference has been made to the judgment in the case of M/s Malhotra Iron Store vs. CST, 1996 UPTC Page 33 and M/s Show Scot Distilleries Pvt. Vs. STO, 1983 UPTC 387 , wherein it has been held that if the goods are of the bona fide dealer, and secondly, if the goods are recorded in the accounts book, then there is no case for imposition of penalty. 8. In the present case, against the judgment of the Appellate Authority dated 10.03.2014, the Revenue went in appeal, and vide impugned order dated 25.11.2014, the Tribunal set-aside the order passed by the Appellate Authority, and amount of penalty of Rs. 10.00 lakh has been imposed by modifying the order passed by the Tax Assessment Officer, dated 13.01.2014. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re produced for verification, and hence, the intention of the trader was to evade tax. The trip-sheet has also not been prepared under Section 48 (8), and this was the responsibility of the importer-trader that with respect to the transportation, in question, he had to produce relevant evidence before the Assessing Authority regarding the transaction in question, and finally, the Tribunal held that there was sufficient ground for imposing penalty, as the truck importing goods for the respondent-trader along with invalid/ out of date Import Declaration Form (Invalid Form XVI) was seized by the Flying Squad, and trip-sheet under Section 48A was not prepared. In this backdrop, the Tribunal imposed penalty of Rs. 10.00 Lakhs upon the assessee. 13. After perusing the order of the Tribunal, it is worth highlighting that imposition of penalty is on the ground that the trader was importing the goods with an import declaration form, which was invalid Form-XVI, and trip-sheet under Section 48A had not been prepared. 14. Learned counsel for the revisionist has referred to the judgment of the Hon ble Supreme Court in the case of State of Rajasthan vs. D.P. Metals, 124 STC 611 (SC), on the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, found at the time of checking, the authorities are legally bound to consider the same before ordering for the seizure of the goods, and the direction was given to release the goods without any security. 17. Learned State Counsel has referred to a Division Bench judgment of this Court in the case of Commissioner, Commercial Tax, Uttarakhand, Dehradun vs. M/s Kama Metal Alloys Pvt. Ltd., Village Raipur, Bhagwanpur, Roorkee, CTR No.07 of 2017, dated 09.04.2021 , and has argued that this Court has already considered the provisions of the Uttarakhand Value Added Tax, 2005, with respect to checking done by the Mobile Squad of the Commercial Trade Tax Department. 18. The Division Bench, while examining Section 48 of the VAT Act, has held that Sections 48 and 65 of the VAT Act, mens rea is not intended by the legislature for imposing penalty. For imposing penalty, the breach of tax was enough. In case the goods were not accompanied with the required Declaration Form and Trip Sheet, the penalty is imposed, then it is justified as per the tax law. The Division Bench had set-aside the judgment dated 13.07.2016, passed by the Commercial Trade Tax Tribunal in Second Appeal No. 47 of 2016, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 48 (8) of the Act is very clear. An opportunity of hearing is to be given, and secondly, while giving opportunity of hearing, if relevant documents are produced, and the Assessing Officer is duly satisfied that the explanation given by the transporter, or the person authorized by the owner of the goods, an attempt was made to evade the tax, only then penalty is to be imposed, and the penalty has not to exceed 40% of the value of the goods. The language of Section 48 (8) is very clear that the Assessing Officer has to give opportunity of hearing, and then give an order on the basis of evidence given by the owner, or the person duly authorized by the owner of the goods or the driver. 23. The provision of Section 48 (8) gives an opportunity to the Assessing Officer to apply its mind to the evidence before it. If the evidence shows that no attempt to evade tax was made, then there is no occasion to impose penalty or seize the goods. Hence, the judgment of the Division Bench dated 09.04.2021, passed in CTR No.07 of 2017, where it has been observed that in Section 48, there is no provision for examining the mens rea of the transporter of goods for imposing penalty, is not correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paragraph 20, it has been observed that on 23.09.2013, one truck importing the goods for the respondent-trader along with invalid/ out dated Import Declaration Form (Invalid Form XVI) had been seized by the Flying Squad and in that case also trip-sheet under Section 48A had not been not prepared. These are the only reasons for allowing the appeal. However, on issuance of show-cause notice, the trader had produced the valid declaration form (Form XVI). It is the case of the trader that he had sent the material to Mysore for job work. The job work was not done and the material was being brought back to the Uttarakhand without the job work. Hence, there was no payment made for the job work, and it was not the case of import of goods to the State of Uttarakhand. The goods, which were sent from Uttarakhand, were being brought back to Uttarakhand without job work. Hence, the nature of goods had not been changed, and it was the case of invalid declaration form, which was made basis to impose penalty. Once, after show-cause notice, the valid declaration form (Form XVI) has been produced with respect to the same evidence of sending the goods for doing of job work in Mysore, and getting them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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