TaxTMI 
TaxTMI 
1997 (7) TMI 605
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.... name of the party was mentioned as Jagdish and vehicle number was also there. In the description, it was mentioned "allowed to go HRP 9547 for weighment". No other document was produced by the driver. Driver, however, submitted that documents were being prepared by the selling dealer and he went to collect the same but returned back without any documents. The officer then deputed a Taxation Inspector for ascertaining this position of the documents but he too returned back and told the Excise and Taxation Officer (Enforcement) that no documents have been prepared. In the meantime, the purchaser of the goods one Jagdish Lal also came without any documents. Excise and Taxation Officer after serving notice on the driver of the vehicle imposed ....
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....the first instance? 3.. Whether penalty under section 37(6) of the Act is imposable merely because no other documents except the gate pass was produced without making any enquiry or establishing that there was an intention to evade tax under this Act? 4.. Whether penalty under section 37(6) can be imposed while goods are not in transit as a result of sale or purchase and are merely going for weighment? 3.. Before opining on the questions referred, it would be useful to understand the purpose and scheme of section 37 of the Act. Section 37 of the Act provides for establishment of check-posts or barriers and inspection of goods in transit. With a view to prevent or check evasion of tax under the Act. The State Government was authoris....
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....person in-charge of the goods carrier to the satisfaction of the officer concerned. 4.. Sub-section (6) of section 37 reads as under: "37. Establishment of check-post or barriers and inspection of goods in transit.-(1)................ (2) to (5).................... (6) 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 in-charge of the goods carrier and shall require him to produce proper and genuine documents as referred to in sub-section (2) or sub-section (4), as the case may be. If, after the enquiry, such officer finds that there has been an attempt to evade the tax due under this Act, he shall, by order, impose on the ow....
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....ge of the goods carrier in which the goods are being carried then the officer in-charge is authorised to impose the penalty on the person in-charge of the goods or the goods carrier or the driver. 6.. In the light of the above, the questions referred to this Court have to be examined. Question No. 1: In spite of the opportunity given to the driver, he did not produce the relevant documents. The purchaser of goods Jagdish Lal who also came present did not produce any documents. As neither the driver nor the owner of the vehicle possessed documents or failed to produce the same, the assumption by the Assessing officer that there was an attempt to evade the tax is well-founded. In view of this, penalty under section 37(6) of the Ac....
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.... or the goods carrier or the driver and not otherwise. Identity of the selling and the purchasing dealer had been disclosed by the driver and it was for the authorities to issue notice to the concerned owner upon whom the penalty could be imposed for an attempt to evade the tax. In this case, owner of the goods was present before the authorities and it was for the authorities to issue a notice to the owner and impose penalty upon him if found guilty of attempt to evade the tax due under the Act. The concerned authorities were negligent in not associating the owner of the goods in the proceedings and providing an opportunity to defend himself. For the reasons stated above, question No. 2 is answered in the affirmative that is against the ....