TaxTMI 
TaxTMI 
1993 (2) TMI 299
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.... the driver aroused suspicion which resulted into seizure of goods and subsequently, the same was released on security. A show cause notice was issued under section 15-A(1)(o) of the Act and in response to show cause notice the assessee submitted a reply. It was stated that the goods had been purchased from Jodhpur under bill No. 2421 dated December 26, 1985 for Rs. 12,629.40. These goods were consigned to Bilari situate in district Moradabad, under G.R. No. 002901 dated December 26, 1985. Form XXXI No. NY-0492575 had also been enclosed with the G.R. It was stated that all necessary papers were produced at the check-post by the driver of the truck. The driver was not fully aware of the routes of the State and had no idea of the check-post located on the road. The papers were checked at the barrier of Rajasthan State and the same were passed. The driver had parked the bus by the side of road and in the meantime the Sales Tax Officer (Check-post) approached there. The driver showed all the papers to him and the same were found in order but in spite of verification by the check-post officer the goods were seized but released later on furnishing security of Rs. 5,200 on the ground tha....
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....osin and oilseeds used for extracting oils of any kind; and (ii) rupees fifty, in the case of other goods; or (b) the quantity, measure or value notified by the State Government in that behalf, in connection with business, shall obtain the prescribed form of declaration on payment of the prescribed fee from the assessing authority having jurisdiction over the area where his principal place of business is situated or, in case there is no such place, where he ordinarily resides: Provided that where the importer intends to bring, import or otherwise receive such goods otherwise than in connection with business, he may, at his option, in the like manner obtain the prescribed form of certificate. (2) Where such goods are to be consigned by road,- (a) the importer shall furnish to the consignor the declaration in the prescribed form in duplicate duly filled in and signed by him and the driver or any other person-in-charge of any vehicle carrying any such goods shall carry with him the copies of such declaration duly verified by the consignor in the prescribed manner together with such other documents as may be prescribed, and shall before crossing any check-post or barrier establish....
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....s no element of mens rea, the penalty under section 15-A(1)(o) of the Act could not be imposed. The court held that the mere fact that the assessee did not produce form XXXI at check-post will not itself make him liable for imposition of penalty unless it is further established that the action of the assessee was an attempt to evade assessment or payment of tax due or likely to be due under the Act. In order that a case is covered within the mischief of sub-section (6) of section 28-A and the goods be detained by an officer making search, or inspection, it is necessary that the said officer must find out that the transportation was not covered by the proper and genuine documents and further, he is satisfied that those goods were transported in an attempt to evade assessment or payment of tax due or likely to be due under the Act. The above two conditions are sine qua non for the application of section 28-A(6). In absence of any of the two requirements, no action can validly be sustained under the said provision. On these conditions being satisfied, the Sales Tax Officer is not only entitled to detain the goods under section 28-A(6) but he is further entitled to proceed under secti....
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....n offence by statute proceeds on the assumption that society suffers injury by the act or omission of the defaulter and that a deterrent sentence must be imposed to discourage the repetition of the offence. In the case of a proceeding under section 271(1)(a), however, it seems that the intention of the Legislature is to emphasise the fact of loss of revenue and to provide a remedy for such loss, although no doubt an element of coercion is present in the penalty. In this connection, the terms in which the penalty falls to be measured are significant. Unless there is something in the language of the statute indicating the need to establish the element of mens rea, it is generally sufficient to prove that a default in complying with the statute has occurred. In our opinion, there is nothing in section 271(1)(a) which requires that mens rea must be proved before penalty can be levied under that provision." In R.S. Joshi, Sales Tax Officer v. Ajit Mills Limited [1977] 40 STC 497 (SC); AIR 1977 SC 2279, the validity of section 37(1)(a) of the Bombay Sales Tax Act, 1959, was challenged which provided that where the dealer collects any sum by way of tax in excess of tax payable by him, or....
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....ayment of tax due or likely to be due under the Act he may detain such goods. This provision contemplates that it has to be established that transportation of goods was in an attempt to evade assessment or payment of tax due or likely to be due under the Act. This provision has to be construed harmoniously with other sub-sections of section 28-A. In case it has to be established by the department before imposition of penalty that act of transportation by an assessee was an attempt to evade assessment or payment of tax due or likely to be due under the Act, the requirement to obtain necessary papers and to follow other formalities and requirement under section 28-A of the Act can be avoided by an assessee. The Legislature when imposes a duty upon the person who intends to import or transports any goods covered by section 28-A of the Act, he has to comply with the requirement mentioned under the said provision. Where it is necessary to obtain form XXXI before importation of goods and such form XXXI was not obtained, he commits a default and his action will be treated in violation of provision of section 28-A of the Act. If the law requires that a person should obtain necessary paper....