Penalty for alleged reuse of Form 38 fails where invoices, bilty and books of account supported the goods transaction.

Penalty could not be sustained on a mere presumption that Form 38 was filled with magic ink and capable of reuse when the goods were accompanied by invoice, bilty and books of account showing the transaction. The Tribunal found that the invoice and bilty were properly filled in ordinary ink, and that the alleged defect in Form 38 alone did not establish evasion. On those facts, the penalty was held legally unsustainable and the revision failed.

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Issues: Whether penalty could be sustained merely on the assumption that Form 38 was filled with magic ink and could be reused, despite the goods being accompanied by invoices, bilty and books of account showing the transaction.

Analysis: The goods were found with the requisite documents, including invoice, bilty and Form 38, and the assessee's books of account showed the transaction. The Tribunal had found that the invoice and bilty were properly filled in ordinary ink, and that the alleged defect in Form 38 was not enough by itself to establish evasion. On the facts, a mere presumption that the form could be reused did not justify the penalty.

Conclusion: The penalty was not legally sustainable and the revision fails.

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